LAWS TO NRI MARRIAGES

LAWS

RELATING TO NRI

MARRIAGES AND THEIR

IMPACT ON WOMEN

KIRTI SINGH DR. PAM RAJPUT

Advocate Director, Maya Foundation,

With inputs from: Sector 15- C, 64, Chandigarh

Asst. Professor Sandhya Kumari,

Vivekananda Institute of Professional Studies

Mr. Abhey Narula, Advocate

Ms. Radhika Chitkara, Advocate

2

INDEX

S.No. Particulars Pg. No.

1.

CHAPTER I

Introduction

3-11

2.

Chapter II

Preventive Steps

12- 18

3.

Chapter III

Divorce in NRI Marriages in India

19- 32

4.

Chapter IV

Maintenance

33-60

5.

Chapter V

Custody Disputes

61-76

6.

Chapter VI

Conclusions and Suggestions

77-81

3

CHAPTERCHAPTERCHAPTERCHAPTER IIII

INTRODUCTION

SCOPE OF THE PROBLEM:

The last few decades have witnessed a phenomenal increase in NRI marriages due

to the increased migration of Indians abroad. In many of these marriages the groom

is typically an NRI while the wife is a resident of India. Naturally the number of

disputes relating to such marriages has also increased. While in some marriages the

wife may be able to fight a legal battle, particularly if she is in a financially strong

position, in most marriages wives are the more vulnerable party. The present study

therefore focuses on the problems faced by women when a marital dispute arises in

NRI marriages (marriages in which at least one party is an NRI or Person of Indian

Origin), since they are the persons who are affected most adversely.

As marriage is a patrilocal affair in India, the wives are expected to join their

husbands wherever they might by living. However, an alarming number of these

marriages are fraudulent marriages or marriages for dowry etc. in which the groom

has no intention to actually live with his wife. Instances of abandonment/desertion

of the wife after a short while have been reported in some NRI marriages.

Sometimes the wife never joins her husband abroad and is abandoned in India and

sometimes she is forced to return to India or left to fend for herself in foreign

lands.

The National Commission for Women is the coordinating agency at the national

level to receive and process complaints relating to Indian women deserted by their

husband overseas. Though these figures relating to disputes in NRI marriages

obviously reflect just the tip of the iceberg, about 1300 cases have been registered

4

with the NRI Cell of the National Commission for Women and the Ministry of

Overseas Indian Affairs from 2005 to 2012.1 Thus, this is only the number of

complaints that have reached these State appointed authorities and do not indicate

the actual number of cases that have gone unreported. However, the data does

acknowledge the problem of desertion by an NRI spouse, and harassment that

results in desertion or forces the wife to leave the matrimonial home.

Many of these marriages are conducted in haste or without verifying the

antecedents of the groom properly. The groom is thus a stranger whose only

attraction is that he lives in a foreign country. The parents of the bride also wish

their daughters to take up permanent residence in another country which seems to

promise a better life for their daughter. It has been noticed that sometimes the

particulars of employment, immigration status, earning, property, marital status

and other material particulars are wrongly supplied by the prospective groom to

con a girl into marriage for ulterior motives. Sometimes the prospective groom is

already a married man and marries again to appease his family members as he

fears that his first marriage will not be socially acceptable to his family. Sometimes

the groom is in a relationship with another person or is already living with

someone and does not reveal this again as he fears disapproval.

The various kinds of disputes that arise in these marriages are:

• Disputes relating to divorce/separation

• Disputes relating to maintenance/ monetary compensation and execution of

maintenance etc. orders

• Disputes relating to custody

• Disputes relating to return of Stridhan and dowry

1 MANU/PIBU/1101/2012

5

• Disputes relating to cruelty and harassment

DISPUTES RELATING TO DIVORCE/SEPARATION

As stated above, in NRI marriages that fail, often the wife is either abandoned in

India or is forced to return here. In her absence, the husband files a petition for

divorce abroad. Since the wife is starved for resources, and is unable to go to the

other country to contest the proceedings, the husband easily procures an ex parte

decree. The courts in India have, however, held such divorces invalid, and

contrary to Indian law if the ground under which the divorce was granted is not

available under the personal law applicable to the parties in India. The Courts have

also held that a decree obtained abroad would be invalid if it was obtained without

a proper contest between the parties. They have relied on Section 13 of the Code of

Civil Procedure, 1908 (hereinafter “CPC”) which defines when a foreign judgment

is not conclusive. The most celebrated case in this regard is the decision of the

Supreme Court in Y Narsimha Rao and Ors. v. Y. Venkata Lakshmi and Anr.2

This, and subsequent cases, highlight how the Indian courts have protected wives

in NRI marriages from ex parte proceedings initiated abroad without contestation

from them. It is for these reasons that many have claimed that it is not beneficial

for India to sign bilateral treaties or conventions recognizing Divorce decrees

granted by foreign courts.

Wives face additional problems if they initiate proceedings in Indian courts. Since

the husband is located abroad, courts are unable to issue summons and get them

served to the husband in a timely and efficient manner, due to which several

months are lost in matrimonial proceedings in India . 2 (1991)3SCC451

6

DISPUTES RELATING TO MAINTENANCE/ MONETARY COMPENSATION AND

EXECUTION OF MAINTENANCE AND OTHER ORDERS

A study conducted by NIPCCD in Punjab and Haryana found that most deserted

wives do not receive any maintenance from their husbands. Those who do receive

maintenance because of court orders do not receive it regularly. In fact, some only

received these payments once or twice. The wife thus faces a double burden, of not

only trying to get an adequate maintenance order from Court, but also seeking to

enforce it, sometimes in a foreign country. This is extremely difficult unless both

countries agree to enforce maintenance decrees mutually. India can enter into

‘reciprocity agreements’ which can then be enforced under Section 44A of the

Code of Civil Procedure, 1908.

Sections 44A and 45 of the CPC provide for execution of decrees passed by Courts

in reciprocating territories, and execution of decrees outside India respectively.

Section 44A limits its operation to Reciprocating Territories, that is, territories with

which India has agreements to mutually enforce its decrees. So far, India has

Reciprocating Agreements with the following countries:

Aden, Bangladesh, The Cook Islands (including Niue) and the Trust Territories of

Western Samoa, Federation of Malaya, Fiji, Hong Kong, New Zealand, Papua and

New Guinea, Republic of Singapore, Trinidad and Tobago, United Arab Emirates

and the United Kingdom.

In a High Court decision involving the judgment of a Californian Court order of a

sum of USD 500 per month towards child support, it was clarified that Section 44A

of the CPC requires a certified copy of a decree of a superior court of any

7

reciprocating country to be filed in the District Court in India and the decree will

be executed in India as if it had been passed by the District Court here.3

In Satya v. Tej Singh, the Supreme Court in 1975 clarified the manner in which an

Indian maintenance decree can be executed outside India under Section 45 of the

CPC.4

DISPUTES RELATING TO CUSTODY

Disputes relating to custody and visitation rights of the children arise in some NRI

marriages that have lasted for sometime. In some cases, fathers forcibly take away

the children abroad, while in others, mothers return with their children to India

finding it difficult to live in a hostile foreign environment. In doing so, they might

be violating custody and visitation orders granted by foreign courts. If custody

orders have not been previously granted, then often the fathers procure them ex-

parte in a foreign country in their own favour. Transnational custody battles raise

several legal complications, such as:

• Whether Indian Courts have jurisdiction to decide the question of custody of

a child who, in these cases, may be a foreign citizen?5

• Does the intention of the mother and the child to reside in India confer

jurisdiction upon Indian courts?6

• Whether Indian Courts should uphold custody orders passed by foreign

courts? In what circumstances can they be upheld?7

3 Paul Tushar Biswas v ADJ and Anr, II (2006) DMC 59. 4 Satya vs Teja Singh AIR 1975 SC 105 5 Ruchi Majoo v Sanjeev Majoo AIR 2011 SC 1952. 6 Mst. Jagir Kaur and Anr. v. Jaswant Singh, MANU/SC/0242/1963 : AIR 1963 SC 1521. 7 Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112.

8

• Whether Indian courts should undertake summary proceedings in the face of

a pre-existing custody order from a foreign court to send the child back to

the foreign country?8

• What principles govern the issue of custody in such cases? Should the

question of the welfare and interests of the child prevail?9

In a long line of decisions, the Supreme Court of India and the High Courts had

upheld the welfare and best interests of the child to be the guiding principle in

custody matters, even when they involved children who had been brought to India.

Therefore, even if a foreign court had already decided the issue of custody, Indian

courts took a re-look at the question through the angle of the best interests of the

child if one of the parents filed for these proceedings in India. This came to the aid

of mothers who had to flee a foreign country due to the hostile environment with

their children. Courts considered it in the child’s best interest to grant custody to

the mothers who were their primary caregivers.

However, the recent decision of a Constitutional Bench of the Supreme Court of

India in V. Ravichandran v. Union of India10 makes a break from the long line of

precedents. It prioritized the principle of comity of nations over that of the welfare

of the child, by ordering that the child, a US national aged 7 years old, should be

sent back to the United States of America. The SC held that instead of approaching

Indian courts, the mother should apply for variation of custody orders in that

country. On facts, the mother had been moving from place to place with the child

in an attempt to escape legal proceedings initiated by the husband. The child,

accordingly, had also been compelled to regularly switch schools, preventing him

from developing a stable life in India. It appears that the Court was greatly swayed

8 Elizabeth Dinshaw v. Arvand Dinshaw, AIR 1986 SC 3. 9 Gaurav Nagpal v. Sumedha Nagpal, MANU/SC/8279/2008 : (2009) 1 SCC 42. 10 (2010) 1 SCC 174.

9

by this fact. The Court also blamed the mother for not asking for custody when she

first arrived in India.

This authoritative precedent by the Supreme Court has thrown the previous line of

authority into disarray, such that subsequent cases have had to justify their orders

against this decision.

The Hague Convention on the Civil Aspects of International Parental Child

Abduction provides one solution to address this heterogeneous trend of decisions.

However, India is not currently a signatory to this. Though the Law Commission of

India in its 218th Report, and some other entities, have recommended that India

should accede to the Convention, women’s rights activists have opposed it. This is

because the Convention pays no heed to women who are often forced to flee a

foreign country with their children to escape mistreatment and abuse by their

husbands. It instead blindly provides that if a parent abducts a child in

contravention of custody orders from a country in which the child was residing, the

courts in the recipient country are bound to summarily decide the case and return

the child to the country of earlier residence, except in limited circumstances.

DISPUTES RELATING TO STRIDHAN AND DOWRY AND DISPUTES RELATING TO

CRUELTY AND HARASSMENT

A significant number of cases reveal a trend that large demands of dowry are made

at the time of and repeatedly after marriage as well. Any refusal to provide Dowry

causes harassment and physical abuse of the wife. The wife either stays on to face

such abuse as she sees no future outside and is insecure, or actually does leave the

matrimonial home to escape it. In the latter case, the husband and his family refuse

to return the dowry and the wife’s stridhan which is her legal entitlement.. It is left

to the wife to pursue it’s recovery from India. If the husband is an NRI, he

10

deliberately ignores summons and does not appear before either the police or the

Court. This wastes a lot of time. As with maintenance cases, even if the court

decides in favour of the wife, it is difficult for the wife to actually recover her

Stridhan or Dowry.

Section 105 of the Code of Criminal Procedure states that the Central Government

should make reciprocal arrangements with foreign governments for the service of

summons/warrants/judicial processes. Accordingly, the Ministry of Home affairs

has entered into Mutual Legal Assistance Treaty/Agreements (hereinafter

“MLAT”) with 22 countries providing for serving of documents, whereby these

countries are legally bound to serve the documents.11 In other cases the Ministry

makes a request on the basis of an assurance of reciprocity to the concerned

foreign government through their mission/embassy. However, this casts no legally

binding obligation upon them to consider the request.

When any complaint for recovery of Stridhan, or cruelty, or harassment is made to

the court, they must try to serve the summons through these channels. However,

the Ministry of Home Affairs has laid down a minimum period of 12 weeks to do

so. In NRI cases, it takes even longer to start the criminal proceedings.

Problematically, summons cannot be served through these channels in case of non-

bailable offences, such as Section 498A of the Indian Penal Code. The Ministry of

Home Affairs in its notification dated 11.2.200912 has stated that it does not

undertake the service of non-bailable warrants of arrest. The service of non-

bailable arrest warrants amounts to the extradition of the individual. The requests

for extradition are based on certain legal procedures contained in applicable

11 These countries are Switzerland, Turkey, United Kingdom, Canada, Kazakhstan, United Arab Emirates, Russia, Uzbekistan, Tajikistan, Ukraine, Mongolia, Thailand, France, Bahrain, South Korea, USA, Singapore, South Africa, Mauritius, Belarus, Spain and Kuwait. 12 Notification No. 25016/17/2007- Legal Cell.

11

treaties negotiated on the basis of International Principle of Extradition. Such

requests are to be forwarded to the Ministry of External Affairs.

The Guidelines issued by the Delhi Police for handling NRI cases present a grim

picture. The Guidelines stipulate that the accused should participate in the

investigation process from the start, i.e., right after the complaint for recovery of

Stridhan or dowry has been filed by the wife with the police. They also require the

Police to exhaust all measures, such as mediation, before proceeding with a

complaint. Though alternative dispute resolution measures are perceived as

effective tools, they normally adversely impact the more vulnerable party, who

mostly tend to be women. Instead of recovering their stridhan or dowry

immediately, the Police give the husband sufficient time to get rid of the stridhan

or hide it. The husband may also abuse this provision to delay the criminal

proceedings. In cases where the accused refuses to be present during proceedings

before the Police, issuing a Red Corner Notice to recover dowry is not possible

since dowry offences lie outside the jurisdiction of the Interpol. The Guidelines

read:

“Red Corner Notice (RCNs):- It is issued by Interpol to arrest criminals all over the

world. The Interpol does not issue RCNs in case of dowry with the plea that RCNs

are issued on terrorist, Mafia, murders.”

Therefore, issues relating to recovery of Stridhan and Dowry, apart from

prosecution for cruelty and harassment, are problematic, and still need to be

thought through.

12

CHAPTERCHAPTERCHAPTERCHAPTER IIIIIIII

PREVENTIVE STEPS

A large number of NRI marriages are arranged marriages, in which normally the

groom is a resident of a foreign country and the bride is a resident of India. The

parents of the girl are eager to relocate the girl to a foreign country- a move which

supposedly greatly enhances their social status. In this eagerness, they do not check

the antecedents of the groom in as thorough a manner as they should. Sometimes,

due to his absence from the country, it is difficult to ascertain anything more than

the basic details about him. They may, for instance, not know whether the groom

already has a wife or girlfriend in the foreign country. Due to the lack of

information, the bride is unable to take any preventive steps to safeguard her future

and her rights. Thus, when a marital dispute does take place, she is often taken by

surprise.

It has therefore become necessary to lay down certain preventive steps to safeguard

the future of the NRI bride. Most of these preventive steps should be taken prior to

the marriage. These preventive steps include:

1. Do not rush into the marriage: Families should not rush into the marriage.

There should be extensive interaction and communication between the

groom and the bride and both the families prior to the marriage. The couple

must be permitted to interact freely and frankly, in privacy, before the

marriage. The alliance must also be discussed publically, with friends,

families and neighbours. These steps will ensure that the relevant

information can be gathered by the girl and her family before marriage,

13

either from the groom and his family themselves, or through other relations

and friends. This will also permit the couple themselves to make up their

minds about the alliance, free from external pressure. The couple should get

married out of their own free will, consent and affinity with each other, and

it should not be motivated only by a desire for overseas residence or green

cards etc.

2. Ensure consent: The free and voluntary consent of both the parties, the

bride and the groom, must be ensured. It must be ascertained whether the

groom is getting married due to parental/social pressure, or whether he

voluntarily wants to get married as well. It is possible that he has a

girlfriend/wife in the foreign country, but his parents are compelling him to

get married to an Indian girl. Similarly, the girl should not be forced into the

marriage . If anything goes wrong, then it is she who needs to live through

the turbulence the most.

3. Verify the background/antecedents of the groom and his family: The

background of the prospective groom must be verified The background

information that is normally relevant includes full particulars about the

groom’s age and marital status, whether he has a live-in partner, his

employment details and his residency/citizenship status. One way of

ensuring that the background information given by the NRI groom is correct

is to insist that the groom gets certificates from his employer about his

current employment status. The groom can also be asked to get an affidavit

attested by the relevant authority in his country of residence stating his

present marital status. If the groom gives a false affidavit, he is likely to be

subject to perjury and other proceedings in the country of his residence.

Thus, the following facts should be checked and verified:

14

a. Marital status: whether he is single, divorced, separated. (This should

be stated on an affidavit)

b. Employment details: qualification and post, salary, address of office,

employer and their credentials, supported by a certificate from the

employer. This can also be stated on an affidavit.

c. Nationality/Citizenship and immigration status should be stated on an

affidavit and supported by attested copies of Passport, Voter or Alien

Registration Card, identification document/documents, and documents

which show the Social Security number.

d. Immigration status: type of visa, eligibility to take spouse to the other

country, supported by relevant documents.

e. Financial status: Properties owned by him in India and abroad,

residence address, family background, supported by property papers,

like Sale Deeds, and other relevant documents. This should be stated

on affidavit also.

4. A declaration that no criminal/civil case is going on against him in the

country of his residence or in India. This could be included in the Affidavit

as well.

5. No reliance on Marriage Brokers/Bureaus: The bride and her family

should not rely on the information furnished on matrimonial sites, marriage

bureaus, agents/middlemen blindly. It is possible that the groom has not

made full disclosure, or even if he has, the broker is withholding that

information on the instructions of the groom. All information must always

be verified through friends, family, data from public authorities (such as the

15

employer of the groom), other friends staying abroad in the vicinity of the

groom etc.

6. Lay down your own terms: The marriage should not be on the terms of the

groom or his family alone. The bride should insist that the marriage take

place in India. She must also not accede to the demands of the groom to give

a hefty Dowry. In some cases, the NRI husband does not take the wife with

him to his country of residence after marriage, assuring her that he will

return later. He then advances unreasonable demands upon her or her family

as a precondition to taking her with him to her marital home. The family

must not give in to these demands, and alert the authorities immediately.

7. Registered Marriage: All NRI marriages should be registered, including

marriages which are performed according to customary rites and ceremonies

under different personal laws, under the Special Marriage Act, or the

Foreign Marriage Act. The marriage should be well publicized, and there

should be ample photographic and videographic evidence of the ceremonies.

8. Furnish only Genuine Documents: The Guidance Booklet on Marriages to

Overseas Indians released by the Ministry of Overseas Indian Affairs warns

the concerned parties not to forge documents or enter into any fake

transactions, on any pretext whatsoever.13 Accordingly, all papers furnished

by either side must be genuine, and the family of the bride must not come

under pressure from the groom to act illegally. Apart from eroding the rights

and entitlements of the bride, these forgeries may additionally land her in

legal trouble, where criminal proceedings may be initiated against her.

13 Ministry of Overseas Indian Affairs, MARRIAGE TO OVERSEAS INDIANS: A GUIDANCE BOOKLET, January 2007 at 20.

16

9. Continuous Contact between the Couple: If the bride is not joining the

groom abroad immediately after the marriage, they should nevertheless

remain in contact with each other constantly. Technology now makes

communication over long distances much easier, through phones, Skype

video calling and chatting, e-mail, social networking sites, etc. Wherever

possible, the family should also get in touch with friends and relatives living

in the same country as the husband so that they can check up in case of any

red alerts.

Other general precautions

1. The Woman should be Financially and Socially Independent: Ideally, the

woman should be equipped with professional and vocational qualifications

so she can be financially independent abroad. She should retain possession

of all the necessary financial and immigration related documents such as her

bank account book, ATM card, passport, visa papers etc. She should keep an

independent account in the foreign country so that she can withdraw money

in emergencies.

She must also engage socially independently so she can seek help abroad

when she finds herself in trouble. She should have a list of contact details of

neighbours, friends, relatives, husband’s employer, police, ambulance, and

the Indian embassy or high commission, if abroad.

2. Gain knowledge of legal rights and entitlements and emergency services

abroad: The bride should gain knowledge of her rights and entitlements in

the foreign country, especially against any kind of abuse or neglect. She

should also have the phone numbers and e-mail IDs of the police and other

state authorities, help-lines and legal aid bodies in the foreign country,

17

Indian embassy and Indian welfare officers, if any. It would also help her to

know the contact details of social support groups and networks.

3. Speak out Against Violence: The woman should inform people whom she

trusts in case she faces violence of any kind from her husband or in-laws-

including physical, emotional, financial, and sexual violence. She must also

complain of this violence to state authorities, or at least consult with legal

advisors or other authorities.

4. Keep copies of Important Documents with Family/Friend of the ‘Bride’:

The family of the woman, in India and also abroad, or a close friend should

keep copies of all her important documents, such as the passport, visa, bank

and property documents, marriage certificate, other essential papers and

phone numbers. In case these papers are lost or forcibly taken away/

mutilated/ destroyed by or at the instance of spouse or in-laws, the copies

will come in handy; if possible, a scanned soft copy can be kept with the

woman and any person she trust so that the same can be retrieved if

necessary.

It is equally important for the woman’s family to keep a photocopy of the

husband’s personal details, including passport, visa, property details, license

number, social security number, voter or alien registration card, among

others.

Steps to be taken by the State:

1. Role of the Embassy: Indian embassies located abroad should have an

active role to play in NRI marriages, especially when the Indian wife is

18

subject to ill treatment in the foreign country. They should provide crisis

assistance and response. They should also appoint Welfare Officers,

especially in countries with a large number of Indians, specifically for this

purpose, who can provide support services. They must also institute

processes whereby wives in NRI marriages, in the midst of a crisis, can avail

of residence status or permits, and prompt visas for defending herself in

legal action initiated by NRI husband in the other country; monetary and

shelter support, access to police protection to the wife and action against the

NRI husband in case of cruelty etc.

2. Pro-active Legal Aid: Within and outside India, the State should provide

free or affordable and accessible legal aid and advice to wives in NRI

marriages. For this purpose, the Indian state should explore tie-ups with

agencies in other countries for women stranded or abandoned there, and

while facing legal action by or instituting legal action against the husbands.

3. Awareness of Society: The State should disseminate information and

generate awareness on the issues related to NRI marriages including the

legal rights and entitlements of wives and children of NRI men and launch

an active social campaign on these issues.

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CHAPTERCHAPTERCHAPTERCHAPTER IIIIIIIIIIII

Divorce in NRI Marriages in India

Case studies conducted across the country indicate that NRI marriages are plagued

by similar issues. The Hon’ble Minister of Overseas Indian Affairs, Shri Vayalar

Ravi provided a state-wise breakup of complaints relating to these marriages in a

written reply in the Rajya Sabha on 30 June 2012. Specifically on the question on

harassment and desertion by husbands of their wives, the figures stand as follows

from 2005 to 2012:

Sr. No. Name of the State/Union Territory Total

1 Andhra Pradesh 42

2 Assam 5

3 Bihar 4

4 Chhattisgarh 2

5 Delhi 74

6 Gujarat 21

7 Haryana 25

8 Himachal Pradesh 1

9 Jammu and Kashmir (J&K) 8

10 Karnataka 7

20

11 Kerala 19

12 Maharastra 21

13 Madhya Pradesh 6

14 Orissa 2

15 Punjab 101

16 Puducherry (U.T) 1

17 Rajasthan 6

18 Tamil Nadu 31

19 Uttar Pradesh 22

20 Uttaranchal 02

21 West Bengal 18

Total 418

The National Commission for Women, the coordinating agency at the national

level to receive and process such complaints relating to Indian women deserted

by their overseas husband, received far more complaints than even the Ministry

of Overseas Indian Affairs. Until March 2012 they were:

Sl. No. State Total number of complaints

1 Delhi 135

21

2 Uttar Pradesh 68

3 Haryana 56

4 Punjab 53

5 Maharashtra 46

6 Gujarat 39

7 Andhra Pradesh 51

8 Karnataka 23

9 West Bengal 30

10 Tamil Nadu 30

11 Rajasthan 25

12 Madhya Pradesh 18

13 Uttrakhand 11

14 Bihar 10

15 Himachal Pradesh 04

16 Assam 03

17 Jharkhand 04

18 Chhattisgarh 02

19 Orissa 09

22

20 Kerala 07

21 Goa 02

22 Tripura 02

23 Jammu and Kashmir 04

Others* 126

Total 758

However, these numbers seem to represent just the tip of the iceberg. Family

lawyers across the country have reported dealing with several more complaints.

This fact is also corroborated by the burgeoning case law on the subject. The data

nevertheless does acknowledge the problem of desertion and harassment by an

NRI husband that forces the woman to leave the matrimonial home.

Often, the NRI husband also initiates divorce proceedings in a foreign court after

deserting and harassing the wife. Trends observed in Indian case law suggest that

he does this for the following reasons:

(i) To ensure that the forum for divorce and other ancillary proceedings, such as

maintenance or child support, is convenient to him, and inconvenient, or in

some cases completely inaccessible, to the wife;

(ii) To covertly obtain a decree of divorce in the absence of the wife in an

attempt to foreclose all her rights;

(iii) To seek divorce on grounds such as irretrievable breakdown of marriage

etc., not currently available under Indian law;

23

(iv) To avoid coming to India and facing prosecution for any criminal

proceedings initiated by the wife.

Only in a miniscule number of such cases does the wife actually contest the

divorce proceedings. Often, she cannot, and does not, contest because she is unable

to meet the costs of the case. It is found that frequently, the wife has also been sent

to India, or has been deserted by the NRI husband. Thus, often her only option is to

initiate legal proceedings in India.

Even so, the divorce procured in a foreign jurisdiction is not fatal to the rights of

the wife. This is because the decree will then need to be enforced in India. This can

be done only if it satisfies the requirements laid down under domestic law. Under

Indian law, there are two ways by which a divorce decree obtained abroad can be

enforced in India: either by way of Section 13, or Section 44A, of the Code of

Civil Procedure. The former applies to judgments from countries with whom India

does not have a treaty or agreement on mutual enforcement of judgments (Non-

Reciprocating Territories), and the latter to countries with whom India has

reciprocal enforcement agreements (Reciprocating Territories).

Section 13, Code of Civil Procedure: When Foreign Judgment not Conclusive

Here, a foreign judgment will be considered conclusive between the same parties

on the same matter, unless the case falls under the far-reaching exceptions

stipulated therein.

The Supreme Court in the case of Y Narasimha Rao read Section13 of the Code of

Civil Procedure to address this problem. It laid down circumstances in which such

judgments would not be binding on the wife.

24

The Court held that “[t]he jurisdiction assumed by the foreign court as well as the

grounds on which the relief is granted must be in accordance with the matrimonial

law under which the parties are married.”14

However, in the same breath, the Supreme Court also laid down three exceptions

to this rule. The proposition may be deviated from in case:

(i) The matrimonial action is filed in the forum where the respondent is

domiciled habitually and resides permanently, and the relief is granted on a

ground available in the matrimonial law under which the parties are married;

(ii) The respondent voluntarily and effectively submits to the jurisdiction of the

forum and contests the claim, based on a ground available under the

matrimonial law under which the parties are married;

(iii) The respondent consents to the grant of the relief although the jurisdiction of

the forum is not in accordance with the provisions of the matrimonial law of

the parties.

14 1991 SCC (3) 451.

Y. Narsimha Rao and Y. Venkata Lakshmi married in Tirupati in 1975 as per

Hindu customs. They separated in July 1978. The appellant had filed a petition

for dissolution of marriage in the Circuit Court of St. Louis County Missouri,

USA on the ground of irretrievable breakdown of marriage. The respondent had

sent her reply from India under protest. The Circuit Court passed a decree for

dissolution of marriage on February 19, 1980 in the absence of the respondent.

On 2 November 1981, the appellant married another woman. The respondent

filed a criminal complaint against him for the offence of bigamy. The Supreme

Court refused to accept the divorce decree granted by the court at Missouri,

USA, on the ground that irretrievable breakdown of marriage is not a ground of

divorce recognized under Hindu Law.

25

CASE PRECEDING THE NARASIMHA RULE:

Narasimha relied on a previous judgment of the Supreme Court of India, in the

case of Satya v. Teja Singh.15

The Supreme Court analysed the domicile requirements under Nevadan Private

International Law rules. It held that the respondent had perpetrated a ‘fraud’ on the

Nevadan court by claiming that he was domiciled within its jurisdiction when in

fact he was a mere ‘bird of passage’. Notably, the Supreme Court extended the

meaning of ‘fraud’ in Section 13(e) of the Code of Civil Procedure to not merely

fraud on merits, but also on jurisdiction. As such, the foreign divorce decree was

found not conclusive by virtue of Section 13(a) and (e) of the Code of Civil

Procedure.

In a recent case March 2012, Sunder and Shyamala tied the knot in Vellore district

in 1999, Sunder went to the USA within a year and did not communicate with

15 AIR 1975 SC 105.

The parties were married in Jullundur in 1955 according to Hindu rites.

Thereafter, the respondent-husband left for USA in 1959, leaving behind his

appellant-wife and two children.

In 1965, the appellant applied for maintenance, to which the respondent

pleaded that he had no obligation to maintain her, since their marriage had been

dissolved pursuant to a decree of the District Court of Nevada in 1964.

The Supreme Court refused to recognise the decree on the narrow ground that

courts in Nevada had no jurisdiction over the matter.

26

Shyamala after that. In 2000, she received summons from Superior Court of

California, which subsequently granted divorce despite the wife’s defence

statement. Madras High Court held that the Superior Court of California was not a

court of competent jurisdiction to decide the matrimonial dispute in this case.

In Narasimha, the Supreme Court acknowledged that it was possible to decide the

case on the limited ground laid down in Satya. It, however, chose to lay down a

much broader holding on Section 13 in relation to divorce decrees obtained abroad.

The Court rightly acknowledged the growing practice of husbands resident abroad

obtaining divorce against their wives resident in India, often without even their

knowledge.

Narasimha read the exceptions in Section 13 specifically in relation to foreign

divorce decrees. The exceptions, and Narasimha’s reading of them, is as below:

a) Where the judgment has not been pronounced by a Court of competent

jurisdiction

Here, Narasimha holds that “only that court will be a court of competent

jurisdiction which the [Hindu Marriage] Act or the law under which the parties

are married recognises as a court of competent jurisdiction to entertain the

matrimonial dispute. Any other court should be held to be a court without

jurisdiction unless both parties voluntarily and unconditionally subject themselves

to the jurisdiction of that court.”

Reading this with Satya, it would appear that if a foreign Court assumes

jurisdiction on the basis that the parties were resident within its jurisdiction, then

the residence must be actual and genuine, accompanied by the desire to make that

place their home, and the parties must not be mere ‘birds of passage’. Such a

reading is beneficial, since in most NRI marriages, the wives do not even live in

27

the foreign jurisdiction. They are often left behind in India with the children,

leaving them with no opportunity to either know about, or contest the proceedings

abroad. These conjoint holdings ensure that the wife at least has access to the

divorce proceedings initiated by the husband.

This is best demonstrated in Veena Kalia v. Dr. Jatinder Nath Kalia & anr.16

The Delhi High Court held that the fact that the petitioner did not contest the

proceedings in the Court at Nova Scotia would not mean that she conceded to its

jurisdiction. She had no means to contest the proceedings there, without any fault

of hers, when it was in fact the husband who left her in the lurch. The husband took

full advantage of her handicap due to meager resources and therefore, the rules of

natural justice had been violated. The petitioner was accordingly granted a decree

of divorce and maintenance under the Hindu Marriage Act, 1955 and the husband

was deemed to be living in adultery.

b) Where it has not been given on the merits of the case;

Narasimha stipulated a two-fold requirement to locate cases outside this exception:

one, the decision of the foreign court should be on a ground available under the

law under which the parties are married, and two, it should be a result of the

16 AIR 1996 Del 54.

The first respondent-husband lived in Canada, where he obtained an ex-parte

divorce decree from the Supreme Court of Nova Scotia. The wife discovered

that he had remarried, pursuant to which she moved the Court in India,

contending that the divorce obtained by the first respondent was illegal and not

binding on her. The respondent argued that despite being given notice, the

petitioner did not contest the same, thereby demonstrating her acceptance of the

jurisdiction of the foreign court.

28

contest between the parties. It further stated, adverting to its facts, that the second

requirement is fulfilled “only when the respondent is duly served and voluntarily

and unconditionally submits himself/herself to the jurisdiction of the court and

contests the claim, or agrees to the passing of the decree with or without

appearance.”

c) Where it appears on the face of the proceedings to be founded on an

incorrect view of international law or a refusal to recognize the law of

India in cases in which such law is applicable;

Narasimha posited that since marriages which take place in India are either under

the customary law or the statutory law in force, therefore, only the law under

which the parties married can be applied to the matrimonial disputes.

This holding has been most relevant in cases where the husbands obtain a divorce

abroad specifically on the ground of irretrievable breakdown of marriage. This

ground is still contested in India, and has not been formally introduced in the

Hindu Marriage Act. For instance, Anubha vs. Vikas Aggarwal,17 the Delhi High

Court refused to take cognizance of the foreign decree of divorce granted for the

irretrievable breakdown of marriage.

d) Where the proceedings in which the judgment was obtained are

opposed to natural justice;

Narasimha read the principles of natural justice widely in the context of

matrimonial disputes, to mean “something more than mere compliance with the

technical rules of procedure.” This requires the foreign court to serve not only

processes, but also ensure that the other party is capable of attending and

representing herself effectively in the proceedings. The petitioner should thus be 17 100 (2002) DLT 682

29

required to make provisions for the cost of travel, residence and litigation of the

responding party in order to comply with the principles of natural justice for the

purposes of this rule. This rule was applied in the Delhi High Court case of

Sheenam Raheja v. Amit Wadhwa.18

Eventually, the Delhi High Court struck down the foreign judgment, since the

decision was not the result of a contest between the parties since the wife did not

have the wherewithal to contest the impugned proceedings in the USA.

e) Where it has been obtained by fraud

Here, too, Narasimha requires a conjoint reading with Satya, whereby ‘fraud’ is

defined not merely as a fraud on the merits of the case, but also on facts related to

the jurisdiction question. Fraud vitiates all judicial acts whether in rem or in

personam.

f) Where it sustains a claim founded on a breach of any law in force in

India.

CONSEQUENCES OF AN INVALID DECREE FOR DIVORCE

When the decree for divorce fails the test of Section 13 it becomes an invalid

decree for divorce. The consequences that flow from it are as follows:

i) If he remarries, the husband may be prosecuted for bigamy. There is no

time limit for the first wife to file a complaint with the police against the

husband in the matter of bigamy. In Narasimha, for instance, the man

remarried in 1981 and bigamy proceedings were initiated ten years after

18 CS (OS) 990/2010 decided on 10.09.2012.

30

that. Bigamy is punishable under section 494 of Indian Penal Code with

imprisonment of seven years.

ii) Wife (divorced as per foreign law) may file for maintenance.

iii) In case the man dies intestate, the first wife will have a claim on the

property of the husband. The second wife will not have such a claim,

because she would not be considered a lawful wife.

Section 44A, Code of Civil Procedure: Execution of Decrees Passed by Courts

in Reciprocating Territory

A “Reciprocating Territory”19 is any country or territory outside India which the

Central Government declares as such.

Section 44A allows the enforcement of a judgment passed in a Reciprocating

Territory in India as if the said judgment had been passed by a court in India itself.

This can be obtained by filing a duly certified copy of the said judgment in the

appropriate court, which will then be executed in accordance with the laws on

enforcement and execution of Indian judgments and orders.

Scheme of the Ministry of Overseas Indian Affairs

The Ministry of Overseas Indian Affairs has recognized the need to equip women

engaged in divorce and other proceedings in foreign countries with sufficient legal

and financial support to effectively litigate. In pursuance of the same, the Ministry

19 Till date only eleven countries have been notified as Reciprocating Territories under the provisions of Section 44A of the CPC, namely Aden, Bangladesh, the Cook Island, Fiji, the Federation of Malaysia, Hong Kong New Zealand, New Guinea, the Republic of Singapore, Trinidad and Tobago, and the Trust Territories of Western Samoa, Papua , the United Kingdom and the United Arab Emirates.

31

introduced the Scheme for giving legal / financial assistance to Indian women

deserted by their overseas Indian / foreigner husbands.

The Scheme defines itself as “a welfare measure to support Indian women in

distress through the mobilization of the local Indian community in the endeavor

and with some financial assistance from the Government.” It extends to women

that are Indian citizens, married to NRIs, in case she is deserted, or divorce

proceedings initiated within the first fifteen years of the marriage. The period for

the divorce proceedings may extend to twenty years in case the husband has

procured an ex-parte divorce decree abroad, when she needs to file a suit for

maintenance and alimony. It provides assistance to the extent of US$ 3000 per

case for developed countries and US$ 2000 per case for developing countries, and

extensively engages NGOs and women’s organizations in the process.

Commendably, the Scheme overcomes the problem of domicile faced by several

such women, especially when courts have often applied the common law rule that

the domicile of the wife follows the domicile of the husband in order to assume

jurisdiction over cases.

It, however, imposes an onerous requirement on women by excluding those who

have been convicted for any offence (with the exception of parental child

abduction). Even offences entirely unrelated to the proceedings at hand are

considered in this determination. This can be particularly discriminatory when such

convictions pose no hurdle for the husband in filing suits for divorce and custody

abroad.

While this Scheme is a step in the right direction, the allowances made are grossly

deficient. Litigations abroad are extremely expensive, especially when the wife

32

may be fighting not only for herself but also for child support payments. Often,

they initiate proceedings repeatedly because the husband defaults in payments.

The shortcomings of the scheme is best exemplified by the number of beneficiaries

being as few as 84 in four years since its existence.20 The total number of

successful litigants of these few is also unknown. But the scheme creates an option

for the wife to contest proceedings abroad or atleast with avail the help of the

NGO’s and other local organizations for help21.

20 As per data on the MOIA website, available at <http://moia.gov.in/writereaddata/pdf/Data_Legal_financial_assistance.pdf>, last viewed on 20.3.2013. 21 List of NGO’s empaneled for providing legal support are available at <http://moia.gov.in/writereaddata/pdf/list_indian_women_17-03-2012.pdf>, last viewed on 20.3.2013.

33

CHAPCHAPCHAPCHAPTERTERTERTER IVIVIVIV

MAINTENANCE

Maintenance is an important issue in NRI marriages as the woman is often left

alone to fend for herself and her children without any support from her husband or

in-laws. She cannot seek relief from a foreign court where her husband resides

because of a lack of access and resources. Her best option is to approach the Courts

in India. However, even here she faces several obstacles. She is required to serve a

notice of her petition on her husband, which takes several months- often even

longer. Then she has to fight a long legal battle in court with constant

adjournments and long dates between hearings. Finally, even if she does get a

decree in her favour, it is difficult to get it executed since India is not a signatory to

any Convention dealing with maintenance obligations. India also does not have

reciprocating agreements with a large number of countries in which the Indian

diaspora is present. It is therefore difficult to get the Indian court orders enforced in

any country. In cases where the NRI wife has got maintenance orders from abroad,

it is difficult to get orders of that foreign court enforced in India as per Section 44A

of the Code of Civil Procedure, 1908.

This chapter discusses cases of maintenance filed by the deserted or separated

wives for herself and their children, international Conventions on this issue and the

Code of Civil Procedure.

INDIAN CASE LAW:

Section 125 of the Code of Criminal Procedure provides for maintenance of wives

and children to prevent destitution. Sections 24 and 25 of the Hindu Marriage Act,

34

1956 also stipulate interim maintenance pendent lite and permanent maintenance

and alimony to the wife. Sections 18 and 20 of the Hindu Adoption and

Maintenance Act, 1956 cast a legal obligation upon the husband to maintain his

wife and children, even if, under some circumstances, she is living away from him.

The most far-reaching, however, is Section 20 of the Protection of Women from

Domestic Violence Act, 2005, which is a secular legislation supplementing

maintenance provisions in other laws.

In Neeraja Saraph v. Jayant V. Saraph and Anr.,22 the Appellant, a teacher

drawing a salary of Rs. 3000/-, was married to the Respondent No. 1, a Doctor in

Computer Hardware and employed in the United States. The marriage had been

arranged by her father-in-law, who had approached a common family friend.

Within six months of her marriage the Respondent persuaded her to leave her

permanent job and join him in the United State. Accordingly she left her job and

applied for a visa. Within a few months of these developments, she received a

petition for the annulment of her marriage filed by her husband in USA. Her

father-in-law only showed sympathy without any financial assistance to her. The

wife filed a suit for damages against the husband and father-in-law, in forma

pauperis. She got a decree in her favour for Rs. 22 Lakh as monetary

compensation.

In an appeal by the husband, the High Court stayed the order but directed the

Respondent father-in-law to deposit Rs. 1,00,000 with the High Court within one

month, and half of this amount was allowed to be withdrawn by the Appellant. On

22 (1994) 6 SCC 461

35

the wife’s appeal against this order, the Supreme Court in its wisdom ordered that

“…the execution of the decree shall remain stayed if the respondents deposit a sum

of Rs. 3,00,000/- including Rs. 1,00,000/- directed by the High Court within a

period of two months from today, with the Registrar of the High Court.” The court

only allowed the wife to withdraw Rs. 1,00,000, originally ordered by the High

Court. The rest of the money was ordered to be deposited with a nationalised bank,

and the wife was allowed to receive interest on that amount. The Supreme Court

further held that if the matter was not decided within a reasonable time, she could

file an application with the High Court to remove more money.

The orders of the High Court and of the Supreme Court demonstrated a clear bias

against awarding large sums of maintenance even in cases of desertion and

monetary loss.

However, the Supreme Court reiterated the importance of enacting legislation for

reciprocal enforcement of foreign judgments.

“Although it is a problem of private International Law and is not easy to be

resolved, but with change in social structure and rise of marriages with NRI

the Union of India may consider enacting a law like the Foreign Judgments

(Reciprocal Enforcement) Act, 1933.”

The judgment included recommendations to safeguard the interests of women

through the following provisions:

1. Marriages between an NRI and an Indian woman, which have taken place in

India, may not be annulled by a foreign court;

2. Provisions may be made for adequate alimony to the wife in the property of

the husband both in India and abroad;

36

3. The decree granted by Indian courts may be made executable in foreign

jurisdictions, both on the principle of comity and by entering into reciprocal

agreements, like Section 44A of the Civil Procedure Code which makes a

foreign decree executable in the same manner as a decree passed by that

court.

Most often, like in all NRI cases, the question of jurisdiction is the most

challenging. After the marriage, either the husband alone or the couple together

move abroad. In case of dispute, the woman is compelled to stay in India and seek

relief from here. However, since jurisdiction is traditionally decided on the basis of

the cause of action or location of the defendant or his domicile, Indian courts rarely

have jurisdiction. This also applies to maintenance cases which must be in tandem

with Section 20 of the C.P.C. The few exceptions to this rule regarding jurisdiction

are the Protection of Women from Domestic Violence Act, Section 125 of the

Code of Criminal Procedure and cases in which divorce/separation proceedings

under Hindu Marriage Act, Special Marriage Act and The Divorce Act have been

initiated in India and maintenance is an ancillary relief.

The Courts have found different ways of responding to this challenge regarding

jurisdiction. The most significant of these cases is Satya v. Teja Singh, which

emphasised that though residence requires more than a fleeting visit, it may be a

temporary or permanent abode. Pertinently, the Court held that decrees obtained

abroad in cases of NRI marriages will not be held conclusive in India under

Section 13(e) of the Code of Civil Procedure, if they have been obtained by fraud

of facts relating even to jurisdiction, and not only the merits.

37

Deepak Banerjee v. Sudipta Banerjee,23 in 1987 stressed the proposition that

‘residence’ for the purpose of conferring jurisdiction for maintenance includes the

residence of the wife, since she cannot be expected to travel long distances, to

foreign jurisdictions to obtain justice when she is claiming destitution. The Court

reiterated Satya v. Tej Singh to this effect, and also stressed the ratio in Shah Bano

Begum24 that Section 125 of the Code of Criminal Procedure is independent of the

nationality and personal law of the parties. Accordingly, the suit does not involve a

question of conflict of laws at all, even if the husband resides in USA.

Jagir Kaur and Anr. v. Jaswant Singh25 discussed the import of the word ‘resides’

under Section 488 of the Code of Criminal Procedure, 1898, which decides the

jurisdiction of courts in maintenance matters.

23 (1987) CALLT 491(HC) 24 Mohd. Ahmed Khan v. Shah Bano Begun AIR 1985 SC 945. 25 AIR 1963 SC 1521

In Jagir Kaur’s case, the respondent lived in Africa. The marriage between the

appellant and respondent took place in 1930, after which the respondent returned

to Africa without the appellant. He returned after more than a decade and stayed

in India for 5 months. Before returning to Africa, he married again, and took his

second wife with him to Africa. On his next trip to India, he took the appellant

with him, and in Africa she gave birth to a daughter.

Soon, disputes started arising between the appellant and the respondent, due to

which respondent sent her back to India, assuring regular maintenance money.

However, even though the appellant returned to India, she never received any

maintenance. She therefore applied under Section 488 of the Code of Criminal

Procedure seeking maintenance for herself and their daughter. The husband

challenged the jurisdiction of the Indian court to hear the matter, on the ground

that the application could only be filed abroad where the Respondent and the

petitioner resided together and that he was not a resident.

38

The Court drew a distinction between ‘residence’ and ‘domicile’, stating that

‘residence’ required a much lower threshold, and even temporary location in an

area could be called ‘residence’: “A person resides in a place if he through choice

makes it his abode permanently or even temporarily; whether a person has chosen

to make a particular place his abode depends upon the facts of each case.”

The most notable observation of the court vis-a-vis NRI marriages is as follows:

“...when sub-s. (8) of S. 488 of the Code, prescribing the limits of jurisdiction,

speaks of the last residence of a person with his wife, it can only mean his last

residence with his wife in the territories of India. It cannot obviously mean his

residing with her in foreign country, for an Act cannot confer jurisdiction on a

foreign court. It would, therefore, be a legitimate construction of the said

expression if we held that the district where he last resided with his wife must be a

district in India.”

This observation alleviated some hindrances in the way of wives in NRI marriages

from claiming maintenance. They would not be compelled to initiate proceedings

abroad, where they would have no resources or means of sustenance anyway. They

could instead initiate proceedings in India, away from any domestic violence by

the husbands as well.

Now however the law has changed as mentioned above.Sections 125 and 126 are

the corresponding maintenance provisions in the new Code of Criminal Procedure,

which expressly confer jurisdiction upon Courts where the wife is resident herself,

and may have moved to after leaving the matrimonial home.

Even so, the Supreme Court in Jagir Kaur’s case awarded maintenance only to the

extent of Rs. 100/- per month for the wife and Rs. 50/- per month for her minor

child, reflecting judicial trends in awarding conservative amounts for maintenance.

39

Paul Tushar Biswas v. Addl. Dist. Judge and Anr. This case addressed the method

by which judgments passed abroad on maintenance can be enforced in India, and

vice versa.26 This case related to an order for child support having been granted in

California, which the father challenged in India. The petitioner claimed to be an

Indian national, residing at California. He alleged that as other cases related to their

marriage were ongoing in Shillong, this should also be heard at the same forum.

The Court held that at Shillong, the matter of maintenance was not sub-judice, and

therefore could rightly have been heard by the Californian court.

It further observed that under Section 44A of the CPC, a decree from a

reciprocating territory can be enforced by merely filing a certified copy of it,

which then will be executed as if it were passed in India. The High Court relied on

the judgment of the Supreme Court in Sankaran Govindan v. Lakshmi Bhurathi

and Ors.27 wherein the Supreme Court had held that “the true basis of enforcement

of a foreign judgment is that it imposes an obligation upon the defendant and

therefore, there must be a connection between him and the forums sufficiently close

to make it his duty to perform that obligation.”28

Further the High Court held that for application of Section 45 and execution of

Indian decree outside India, the following conditions should be satisfied:

(1) The decree to be executed is of an Indian Court for execution in a foreign

territory.

(2) The transferee Court should be one established by Central Government in such

foreign territory.

26 II(2006)DMC59 27 MANU/SC/0406/1974 : [1975]1SCR57 28 As referred in Paul Tushar Biswas v Addl. Dist. Judge and Anr.

40

(3) The State Government, by notification, has declared this section to apply to the

said foreign Court.

However, in the given case there was no agreement of reciprocity between India

and the State of California and any order passed by the court in India would not be

enforceable in the State of California, and vice versa. It further held that in absence

of either of the abovesaid conditions, an Indian Court has no jurisdiction to send its

decree for execution to a Court not situated in India.

This petition related to an application by the husband to exculpate him from the

obligation to pay even this amount. The High Court, while expressing sympathy

with the wife for not having received maintenance of even this amount since the

order had been passed two years past, struck down the prayer of the

In Satish Mehra v Anita Mehra the Petitioner NRI husband, a ‘man of status’,

got married to the Respondent wife on 18.2.1980 in India according to Hindu

rites and ceremonies. The wife then migrated to USA with the Petitioner where

they remarried on 19.05.1982. The couple had two daughters and one son.

Matrimonial relations between them were not very cordial. As per the

Respondent wife the husband used to give USD 31,200 per year to her for

running household affairs. However, as soon as the wife would encash the

cheque, the husband would take the entire amount back. The husband would

physically, mentally and sexually abuse the wife and also the children.

The wife sought maintenance to the extent of Rs.3,79,500/- for herself and for

three her children, keeping in view their status as well. However, the

metropolitan magistrate awarded her a sum of only Rs.35,000/- per month for

her own upkeep, and that of her four children.

41

husband.However, in doing so, it nevertheless upheld the paltry amount of

maintenance awarded by the MM.

Sanjay Angad Chaddah v. Deepa Sanjay Chaddah29 was a case in which the High

Court of Bombay upheld an order on maintenance passed by a court of London

binding upon the parties by virtue of Section 13 of the Code of Civil Procedure.

After their marriage, both the parties were living in the UK, where they had a

child. However, disputes arose between them, due to which they started living

separately. They reached a compromise, which was assented to by a court in

London. The husband defaulted on his obligations and failed to pay maintenance.

The High Court of Bombay held that if the husband paid the wife maintenance

monthly and arrears of maintenance at the rate of Rs. 15,000/month, he would be

considered to have fulfilled his obligations.

In Rahul Bhupinder Luthra v. Rashmi/Ria Rahul Luthra,30 the husband was

originally ordered to pay maintenance to the wife and child at the rate of

Rs.12,000/- per month. The wife appealed the order of the trial court, since it

refused to grant her the stridhan property. She also claimed maintenance at

Rs.30,000/- per month, and claim for residence.

The High Court partly allowed the petition and the wife was held entitled to

receive maintenance at the rate of Rs. 25,000/- per month for herself and Rs.

5,000/- per month for her daughter.

The High Court of Delhi heard the case of Anubha v. Vikas Aggarwal,31 wherein

the wife asked for maintenance under Section 18 Hindu Adoption and Maintenance

Act 1956. This was contested by the husband, on the ground that she was not

29 AIR2011Bom393 30 2010 (5) BomCR 314 31 I(2003)DMC139

42

entitled to maintenance under the HAMA since she had been leading an unchaste

life. The Court granted maintenance for Rs.10,000/- month, holding that merely

fraternizing with members of the opposite sex does not amount to unchastity, and

therefore the wife was not disentitled to maintenance.

While refusing to cast the wife’s actions as unchaste, the Court nevertheless was

guided by the principle enshrined in the HAMA that unchastity disqualifies a

woman from maintenance. This is problematic, since maintenance is provided in

recognition of the household work done by the woman and compensates her for

the loss of her opportunity in obtaining gainful employment and the loss of

earning capacity. This is totally unrelated to the conduct and character of the

woman, especially if it relates to her conduct after the marriage has come to an

end. At that stage, her sexual relations with other men apart from her ex-husband

does not threaten the relationship of marriage at all. Other countries around the

world, such as Canada, have already delinked entitlement to maintenance from the

requirement of chastity, holding it irrelevant to the question of the destitution of

the woman.

The Court further held that since the plaintiff did not submit to the jurisdiction of

the USA Court nor did she consent for the grant of divorce in the US Court the

decree obtained by the defendant from the Connecticut Court of USA is neither

recognizable nor enforceable in India.

In Maganbhai Chhotubhai Patel v. Maniben,32 the Court attempted to lay down a

formula by which the wife would be entitled to maintenance. Here, the husband,

after leaving his wife and children in India, went to the United States for further

studies. He did not return to India, and also did not maintain his wife and two

32 AIR 1985 Guj 187

43

minor children, even though the wife had obtained an order for a paltry

maintenance of Rs. 250 per month. Here, the husband was appealing against the

order of maintenance awarded at the trial court, while the wife was seeking

enhancement upto Rs.1000.

Furthermore, the husband had previously sought divorce from his wife through a

letter from USA. He eventually obtained divorce, in the absence of the wife, from a

court in Mexico, where he had obtained a residence certificate on account of a brief

stay.

The Court struck down the divorce decree on the grounds that it had been obtained

by fraud of the facts relating to jurisdiction, under Section 13(e) of the Code of

Civil Procedure. It held that a residence certificate, which may be granted even to

persons living in hotels for a short while, is insufficient to confer jurisdiction upon

the Mexican Courts, since the appellant was domiciled in India, and living in the

USA.

The Court also attempted to lay down an objective standard for maintenance, such

that “…if the wife is neglected, who has to maintain two children, the share from

the income of the husband to which the wife should be entitled may be considered

to the extent from one-third to one-half.”

Even then, the Court awarded Rs.1000/- to the wife out of the total income of the

husband of Rs.12,000/-, presumably because it was bound by the prayer of the

respondent herself, in which she had sought Rs.1000/-.

In Indira Sonti v. Suryanarayana Murty Sonti and Anr.,33 the parties solemnised

their marriage in USA, and within hours of this the respondent and his family

raised further demands for dowry for more gifts and Rs. 10 lakhs. The appellant 33 1(2002)DMC56

44

was also forced to quit her job before the marriage. The appellant sought

maintenance in Delhi, under Section 18 of the HAMA, and also sought interim

maintenance pendent lite.

This case raised two significant questions. First, whether rules relating to

jurisdiction enshrined in Section 126 of the Code of Criminal Procedure also apply

to applications for maintenance apart from Section 125 of the Code; and second,

what is the relationship between the earnings of the husbands to the entitlement to

maintenance for the wife.

The Court read the jurisdiction requirements beneficially. It stated that Section 126

reflects societal needs better, since they permit a woman to file for maintenance at

her place of residence, especially since maintenance is sought by women without

adequate means of supporting themselves. Accordingly, Section 126 was also

extended to Section 18, HAMA.

The Court further reiterated the line of precedents in several High Courts around

the country, including Delhi, where maintenance to the wife is awarded to the

extent of half of the husband’s net income. Here, the husband was earning

US$65,000 per year, out of which, he claimed, he expended US$56,000 on taxes,

rent and other essential living expenses, and was therefore incapable of paying

maintenance out of the meagre savings of US$9000. The Court rejected this

contention, and awarded the wife US$400 per month as per the formula.

Abdur Rahim Undre v. Padma Adbur Rahim Undre is demonstrative of the trend

whereby, despite court precedents stipulating an objective formula to calculate

maintenance, the courts nevertheless grant ad hoc amounts to the wives.34 Here, the

Court did not even consider the question of the earnings of the husband. Instead, it

34 AIR1982Bom341

45

ordered to physically partition the house according to the plans proposed by the

appellant, whereby the wife got less than one-third of the apartment, along with

Rs.7000/- as maintenance. The ability of the husband to purchase a house in an

upscale area demonstrated that his earnings far exceeded the maintenance he had

been ordered to pay.

Cases on maintenance repeatedly expose a trend where Courts decide cases of

maintenance in a patriarchal manner. This gets reflected not only in the amounts

that are eventually awarded, but also the conditions that are imposed on the

entitlement to maintenance. Maintenance is not perceived as compensation to the

woman for the loss in her earning abilities by virtue of her role as the ‘home-

maker’ in the family. According to this, the wife is expected to devote her time and

energy to the upkeep of domestic chores, at the cost of her economic

independence. Even when the woman has a job herself, it does not lessen her

responsibility of taking care of the house and this often affect her opportunities for

promotion. The husband mostly continues to exercise control over the finances and

assets of the family, which are hardly ever acquired in the name of the wife.

Instead, maintenance is perceived as a bare minimum anti-destitution provision.

Accordingly, the Courts award meagre amounts for maintenance, even when the

wife has to look after the children. While Courts have exceptionally stipulated that

maintenance should reflect the earlier standard of living of the wife, and the

amount granted should be half of the income of the husband, courts hardly abide

by these requirements. This further impacts the legal advice that these women

receive, wherein lawyers also do not pray for high maintenance amounts on behalf

of their clients.

46

Indian legislation further links the entitlement of maintenance to the wife to her

conduct and character, stipulating that unchaste women cannot claim maintenance.

This shows a patriarchal bias, since it suggests that the husband has an obligation

to provide for the sustenance of the wife only as long as he is able to sustain a

monopoly over her. This mandate stretches to absurd conclusions when it is

extended to post-divorce maintenance as well. The law, in this manner, enforces a

strict code of conduct upon all women, by linking their sustenance to their sexual

conduct. Maintenance, in this light, is not perceived in the manner that it should- of

compensation for loss of opportunity of economic independence equal to the man,

enforced through social norms associated with marriage.

This legal stance then acts as deterrence for women from stepping out of abusive

and unhappy marriages, knowing that the cost of living outside the marriage is

very high. The law compels women to sustain the abuse and prevents them from

making a free choice of obtaining divorce or separation.

Conventions:

The Hague Conference on Private International Law has transformed international

family law. Now, with over 70 members, the Conference has become a center for

international judicial and administrative cooperation, by taking on new roles,

implementing and monitoring the Conventions and providing education and

assistance for participants. There are several Conventions regulating substantive

and procedural matters in international civil litigation under the Hague Conference.

These include the Convention on the Law Applicable to Maintenance Obligations

Towards Children 1956, Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters, Convention on the

Recognition of Divorces and Legal Separations, legalization of public

47

documents,35 service of judicial and extra-judicial document abroad,36 taking of

evidence37 and co-operation regarding inter-country adoption and protection of

children38.

India, though a member of the Hague Conference, has ratified only four Hague

Conventions. These are: Convention Abolishing the Requirement of Legalisation

for Foreign Public Documents, Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters, Convention on the

Taking of Evidence Abroad in Civil or Commercial Matters, Convention on

Protection of Children and Co-operation in Respect of Inter Country Adoption.

As discussed earlier, litigation involving NRI marriages suffer greatly from

procedural vagaries. Issuing service and summons, recognition and enforcement of

judgments are also controversial. The Convention on the Service Abroad of

Judicial and Extrajudicial Documents in Civil or Commercial Matters addresses

these issues. However while ratifying the Convention, India has made a reservation

vis-a –vis Article 10 which states the following about methods of service:

Provided the State of destination does not object, the present Convention

shall not interfere with -

a) the freedom to send judicial documents, by postal channels, directly to

persons abroad,

35 12th Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, the Convention is not into force between India and Germany, available at: http://www.hcch.net/index_en.php?act=conventions.text&cid=41 last visited on 08.03.2013. 36 14th Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, available at: http://www.hcch.net/index_en.php?act=conventions.text&cid=17 last visited on 08.03.2013. 37 20th Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, available at: http://www.hcch.net/index_en.php?act=conventions.text&cid=82 last visited on 08.03.2013. 38 33rd Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, available at: http://www.hcch.net/index_en.php?act=conventions.text&cid=69 last visited on 08.03.2013.

48

b) the freedom of judicial officers, officials or other competent persons of

the State of origin to effect service of judicial documents directly through the

judicial officers, officials or other competent persons of the State of

destination,

c) the freedom of any person interested in a judicial proceeding to effect

service of judicial documents directly through the judicial officers, officials

or other competent persons of the State of destination.

India has assented to the conditions for passing a judgment contained in Article 15

para 2. Further under Article 16 an application for relief against the judgment by

the defendant will not be entertained if filed after the expiration of one year

following the date of the judgment.

None of these as relate to maintenance obligation and its enforcements, which most

commonly relate to child support and spousal support.

The Convention on the Law applicable to Maintenance Obligations towards

Children of 24 October 1956 and the Convention on the Recognition and

Enforcement of Decisions relating to Maintenance Obligations and Convention on

the Law Applicable to Maintenance Obligations of 2 October 1973 were replaced

by the new Convention of 23 November 2007 on the International Recovery of

Child Support and Other Forms of Family Maintenance, which is accompanied by

Protocol of 23 November 2007 on the Law Applicable to Maintenance

Obligations.

Hague Convention of 23 November 2007 on the International Recovery of

Child Support and Other Forms of Family Maintenance

49

Known as the Maintenance Convention, it came into force on 1st March, 2013. It

makes an explicit reference to the Convention on the Rights of the Child [CRC],

emphasizing that the best interests of the child principle is a primary consideration

in all actions concerning children. Following the provisions of Article 27 of the

CRC, this convention recognizes the right of every child to an adequate standard of

living and the primary responsibility of parents or others responsible for the child

to secure the conditions of living necessary for the child’s development.39

The object of this Convention is to ensure the effective international recovery of

child support (irrespective of marital status of the parents) and other forms of

family maintenance, in particular by –

a. establishing a comprehensive system of co-operation between the

authorities of the Contracting States;

b. making available applications for the establishment of maintenance

decisions;

c. providing for the recognition and enforcement of maintenance decisions;

and

d. requiring effective measures for the prompt enforcement of maintenance

decisions.

The provisions of this Convention shall apply to children regardless of the marital

status of their parents and a State may extend the application of the whole or any

part of the Convention to any maintenance obligation arising from a family

relationship, parentage, marriage or affinity, including in particular obligations in

respect of vulnerable persons.

39 Ann Laquer Estin, ‘Families across Borders: the Hague Children’s Conventions and the Case for International Family Law in the United States’, Florida Law Review, Vol. 62, 55

50

The Convention has been made applicable to the following –

a. to maintenance obligations arising from a parent-child relationship towards a

child under the age of 21 years (some states may reduce it to 18 years);

b. to recognition and enforcement or enforcement of a decision for spousal

support when the application is made with a claim for child maintenance ;

and

c. to spousal support with the exception of Chapters II and III (applications

through Centralized Authority).

The Convention bases its infrastructure on administrative support authorities

already in place. It provides a system of administrative cooperation for processing

international child support applications which is specifically designed to handle

large volumes of cases.40

It provides for a “Central Authority to discharge the duties that are imposed by the

Convention on such an authority.”41 Further it also provides for various other

measures relating to this Authority, including the function to be performed by it.

Central Authorities shall provide assistance in relation to applications (filed

through such authorities in contracting state through similar authority in state

addressed) under Chapter III. In particular they shall do the following:

a. transmit and receive such applications;

b. initiate or facilitate the institution of proceedings in respect of such

applications.

Further, in relation to such applications they shall take all appropriate measures –

40 Ibid. 41 Article 4(1)

51

a. where the circumstances require, to provide or facilitate the provision of

legal assistance;

b. to help locate the debtor or the creditor;

c. to help obtain relevant information concerning the income and, if necessary,

other financial circumstances of the debtor or creditor, including the location

of assets;

d. to encourage amicable solutions with a view to obtaining voluntary payment

of maintenance, where suitable by use of mediation, conciliation or similar

processes;

e. to facilitate the ongoing enforcement of maintenance decisions, including

any arrears;

f. to facilitate the collection and expeditious transfer of maintenance payments;

g. to facilitate the obtaining of documentary or other evidence;

h. to provide assistance in establishing parentage where necessary for the

recovery of maintenance;

i. to initiate or facilitate the institution of proceedings to obtain any necessary

provisional measures that are territorial in nature and the purpose of which is

to secure the outcome of a pending maintenance application;

j. to facilitate service of documents.

The Convention specifically provides for recognition and enforcement of decisions

of judicial or administrative authorities in respect of a maintenance obligation as

52

well as maintenance arrangement.42 It does not require the state addressed to enter

into the merits of the case. It even dispenses with the need of personal appearance

of the applicant in the addressed state.43

It provides that enforcement should be according to the internal law of the state

addressed and there should be no discrimination between the domestic cases of the

state addressed and those originating from the state of origin of the maintenance

seeker.44

Further, it also provides for measure for effective enforcement of maintenance

obligations45, which are:

a. wage withholding;

b. garnishment from bank accounts and other sources;

c. deductions from social security payments;

d. lien on or forced sale of property;

e. tax refund withholding;

f. withholding or attachment of pension benefits;

g. credit bureau reporting;

h. denial, suspension or revocation of various licenses (for example, driving

licenses);

i. the use of mediation, conciliation or similar processes to bring about

voluntary compliance.

42 Chapter IV inclusive of Articles19, 20 and 29 43 Articles 27-29 44 Articles 32 and 33 45 Article 34

53

This Convention faced opposition while in its draft form. While the previous

Conventions of 1956 and 1973 merely required participants to recognize foreign

support orders, this Convention requires the Central Authorities to provide

“effective access to procedures” for child support enforcement. This also includes

free legal assistance in most situations. These terms were not readily acceptable to

several states, even though some countries, like the United States, were already

following similar principles in their domestic child support enforcement system

and in their bilateral agreements with other countries. Countries were also

conflicted on the jurisdictional rules of participating countries. A large bone of

contention was the range of family relationships that may give rise to support

obligations- countries objected to children born out of live-in relationships from

being brought within the purview.46

The Convention also provides for recognition and enforcement of other family

maintenance obligations, such as spousal support, parental obligation, by direct

request to a Tribunal in another contracting state.

In India, there currently exist no child maintenance enforcement authority

mechanisms, which is why the provisions of the Convention provide little

assistance. Since the Convention operates through existing authorities, it is more

effective in countries like USA and Canada. Nevertheless, it permits Indian women

to seek enforcement of maintenance decrees passes in foreign contracting states

easily.

The Protocol on the Law Applicable to Maintenance Obligations

46 Ann Laquer Estin, ‘Families across Borders: the Hague Children’s Conventions and the Case for International Family Law in the United States’, Florida Law Review, Vol. 62, 55

54

This Protocol was concluded on 23 November 2007 alongwith the Maintenance

Convention. In comparison with the prior Hague Conventions, the Protocol

provides three main innovations. First, while retaining the habitual residence of the

creditor as the main connecting factor, and extending it to maintenance obligations

between spouses and ex-spouses, the Protocol reinforces the role of the lex fori

(law of the forum). For claims made by certain “privileged” classes of creditors,

the lex fori is promoted to the rank of the principal criterion, with the law of

habitual residence of the creditor playing only a subsidiary role. Next, an escape

clause based on the idea of close connection was introduced for obligations

between spouses and ex-spouses. Finally, a measure of party autonomy was

introduced, in two variations: the possibility of procedural agreements enabling the

parties, with respect to any maintenance obligation, to select the law of the forum

for the purposes of a specific proceeding; and, an option regarding the applicable

law that may be exercised at any time, subject to certain conditions and

restrictions.47

The scope of maintenance obligations of the Protocol is wider than the 2007

Convention, and it determines the law applicable to maintenance obligations based

on any family relationship, including family relationships, parentage, marriage or

affinity, including a maintenance obligation in respect of a child regardless of the

marital status of the parents.48 A special defence rule has been included in the

Protocol to partially mitigate its broad scope. A debtor may contest a creditor’s

claim on the basis that there is no such obligation under both the law of the State of

the debtor’s habitual residence and if the parties have a common nationality, in the

law of that state as well. This defence is applicable to any maintenance obligation

47 Art. 4(3), 5, and 7. Also see Outline: Hague Protocol On Law Applicable To Maintenance Obligations, available at: http://www.hcch.net/upload/outline39e.pdf last visited on 08.03.2013. 48 Outline: Hague Protocol On Law Applicable To Maintenance Obligations, available at: http://www.hcch.net/upload/outline39e.pdf last visited on 08.03.2013.

55

other than those to children arising out of a parent-child relationship or those

between spouses or ex-spouses.49

The highlights of this Protocol are:

1. The term habitual residence in Article 3 has not been defined. This is

necessary to know in order to ascertain which law should apply. The law

applicable is linked to the creditor’s habitual residence so that the existence

and the extent of the maintenance obligation can be determined, with regard

to the legal and factual conditions of the social environment of the creditor’s

country.50

2. The application of this law can only be refused if it is manifestly

incompatible with public policy of the country, and not otherwise.51

Therefore, there needs to be a blatant contradiction.

3. This Convention provides the scope for application of personal laws of

parties which is important in a country like India. If reference is made to the

law of the habitual residence of the creditor or debtor, then in such a case

reference shall be made to the system designated by the rules in force in that

State or, if there are no such rules, to the system with which the persons

concerned are most closely connected.52 It talks about superintendence of

personal laws in case of conflict of laws. This is important in case of a

country like India which has a myriad of provisions.

49 Ibid 50 Andrea Bonomi , Explanatory Report on the Protocol Of 23 November 2007 On The Law Applicable To

Maintenance Obligations, 14 Hague: Permanent Bureau, HCCH, October, 2009. Available at

http://www.hcch.net/index_en.php?act=conventions.publications&dtid=3&cid=133 last visited on 09.03.2013. 51 Article 11 52 Article 16

56

4. The Protocol provides for Universal application. Its ratification by a large

number of States may be beneficial for creditors, even those who are

domiciled in States that have not acceded to it (and which do not

contemplate becoming Parties to it): even creditors domiciled in such States

will enjoy the benefit, in the course of proceedings initiated in a Contracting

State (e.g., in the State of the debtor’s domicile), of the application of

uniform rules favourable to the creditor, which are laid down in the Protocol.

53

This also does away with the requirement of a reciprocating and non-

reciprocating territory as envisaged in S.44A of the CPC.

5. Article 5 of the Protocol on the Law applicable to Maintenance obligations,

2007 introduces a special rule with respect to maintenance obligations with

respect to spouses and ex-spouses.

In the case of a maintenance obligation between spouses, ex-spouses or parties to a

marriage which has been annulled, Article 354 shall not apply if one of the parties

objects and the law of another State, in particular the State of their last common

habitual residence, has a closer connection with the marriage. In such a case the

law of that other State shall apply. The law of the State of the habitual residence of

the creditor shall not apply if the spouse/ex-spouse objects. Thus, in cases where

the bride is taken abroad and the marriage is solemnized in a foreign land, there

may be a possibility that the law of the foreign land be made applicable. Therefore

53 Supra n.1 at p.7 54 General rule on applicable law

(1) Maintenance obligations shall be governed by the law of the State of the habitual residence of the creditor, save

where this Protocol provides otherwise.

(2) In the case of a change in the habitual residence of the creditor, the law of the State of the new habitual

residence shall apply as from the moment when the change occurs.

57

it is recommended repeatedly that marriage should take place in India, as a

preventive step.

6. The convention also gives the option to the parties to designate one of the

following laws as applicable to a maintenance obligation -

a. the law of any State of which either party is a national at the time of

the designation;

b. the law of the State of the habitual residence of either party at the

time of designation;

c. the law designated by the parties as applicable, or the law in fact

applied, to their property regime;

d. the law designated by the parties as applicable, or the law in fact

applied, to their divorce or legal separation.55

This is akin to the parties willingly submitting to the jurisdiction of a

Court, in which case the judgment becomes enforceable. However,

this provision requires that parties should be fully aware of the

consequences of designating a law, and if the parties signed the

agreement without being fully aware of the consequences of their

designation, then the law designated by the parties shall not apply

where the application of that law would lead to manifestly unfair or

unreasonable consequences for any of the parties.

7. The 2007 protocol does not permit contracting states to make any

reservations.56 This is a significant departure from the Law Applicable to

Maintenance Obligations, 1973, whereby countries could make reservations

55 Article 8 56 Article 27

58

to exclude certain creditors. Earlier, any Contracting State could reserve the

right not to apply this Convention to maintenance obligations between

divorced or legally separated spouses, or spouses whose marriage has been

declared void or annulled if the decree of divorce, legal separation, nullity or

annulment has been rendered by default in a State in which the defaulting

party did not have his habitual residence.57

8. The Convention allows either spouse to object when it is a question of

enforcing maintenance obligations between spouses and ex-spouses. The

Convention provides for an exception in case of spouses and ex-spouses.

9. The provision of a special rule for this class of maintenance obligations is

based on the observation that application of the law of the creditor’s habitual

residence is not always suitable for obligations between spouses or ex-

spouses. It should be taken into consideration that in certain domestic

systems, maintenance is granted to a spouse only with great restraint and in

exceptional cases (in Europe, this restrictive attitude is a feature of the law

of Scandinavian States in particular). Against that background,

indiscriminate application of the rules inspired by favor creditor is seen in

certain States as being excessive.58

10. However, mere objection by one of the spouses is not sufficient, as there

also needs to be a close connection with country of last habitual residence.

This implies that the court, pursuant to such a request, will ascertain whether

the marriage has closer connections with a law other than that of the creditor’s

habitual residence. In so doing, it shall have regard to all the connections of the

57 Article 14(3), 1973 Convention 58 Supra n.1 at p.21

59

marriage with the various countries concerned, such as the spouses’ habitual

residence and / or domicile during the marriage, their nationalities, the location

where the marriage was celebrated and the location of the legal separation or

divorce. In addition, it will have to weigh them so as to determine whether they

are more or less significant than the current habitual residence of the

maintenance creditor.59

11. Article 14 of the Convention allows for adjustment of the maintenance

obligation with any earlier consideration paid.

It refers in particular to cases where, at the time of divorce, one spouse has

obtained the payment of a lump sum or the allocation of part of the property

(real or personal) belonging to the other spouse (as is the case, for instance,

in certain common law jurisdictions) to liquidate all his or her claims,

including maintenance. In such case, the subsequent assertion of

maintenance claims by one spouse, incompatible with the earlier settlement,

on the basis of a law that does not recognise this form of compensation,

should be avoided: if the law designated by the Protocol relies on the

creditor’s current needs, without having regard to the compensation

previously received, the result could be unfair.60

Therefore, the Convention accommodates the requirements of Indian law by

providing for inclusion of personal laws and takes cognizance of public policy. It

also unifies the different kinds of maintenance obligations. The Convention further

dispenses the need for another country to be a reciprocating territory as it enjoys

universal application. In most of the cases where the women are abandoned by

their NRI husbands, it is observed that these women are not even taken abroad and

59 Supra n.1 at Pg 23 60 Supra n.1 at Pg 40

60

are instead left behind. In such cases, the law applicable would be that of the wife’s

“habitual residence”, which ensures protection by Indian laws. However, caution

has to be exercised in cases where the woman is taken abroad only to be

abandoned after a few months, as this should not be construed as a change in the

habitual residence of the wife.

61

CHAPTERCHAPTERCHAPTERCHAPTER VVVV

CUSTODY DISPUTES

The plight of harassed and tortured women returning home has been highlighted in

the preceding chapters. In a large number of these cases, the wife returns to India

with the children, often seeking the support of her parents or other friends and

family based in India. The NRI husband then initiates custody proceedings in a

foreign Court to get the custody of the children. The wife then faces the same

challenges relating to jurisdiction, resources and access to proceedings as discussed

in the previous chapter. This has caused the Supreme Court to observe the

following about the phenomenon:

“Conflict of laws and jurisdictions in the realm of private international law

is a phenomenon that has assumed greater dimensions with the spread of

Indian diasporas across the globe. A large number of our young and

enterprising countrymen are today looking for opportunities abroad. While

intellectual content and technical skills of these youngster find them

lucrative jobs in distant lands, complete assimilation with the culture, the

ways of life and the social values prevalent in such countries do not come

easy. The result is that in very many cases incompatibility of temperament

apart, diversity of backgrounds and inability to accept the changed lifestyle

often lead to matrimonial discord that inevitably forces one or the other

party to seek redress within the legal system of the country which they have

adopted in pursuit of their dreams. Experience has also shown that in a

large number of cases one of the parties may return to the country of his or

her origin for family support, shelter and stability. Unresolved disputes in

such situations lead to legal proceedings in the country of origin as well as

62

in the adoptive country. Once that happens issues touching the jurisdiction

of the courts examining the same as also comity of nations are thrown up for

adjudication.”61

The Supreme Court correctly observes the trend by which the wife is compelled to

return to India. Normally, she returns with the children, either before a custody

arrangement is resolved abroad, or after, in violation of the arrangement. In both

these situations both parties have the right to approach the Indian Courts to have

the dispute adjudicated.

In cases where one of the parents takes the children to India in violation of existing

custody orders, the parent living in the foreign country may initiate Guardianship

proceedings. When he is unaware of the present location of the children, he can file

a habeas corpus petition under Section 97 of the Code of Criminal Procedure to

trace the children and have them produced before Court.

The habeas corpus petition will be granted if it is proved that a child is in wrongful

confinement by a person who is not his/her lawful guardian. Accordingly, the

petition itself requires the Court to entertain the question of lawful custody of the

child.

In Syed Saleenmuddin v. Dr. Rukhsana and Ors,62, the Supreme Court dealing

with a habeas corpus seeking custody of minor children, inter alia, observed as

under:-

"…it is clear that in an application seeking a writ of Habeas Corpus for

custody of minor children the principal consideration for the Court is to

ascertain whether the custody of the children can be said to be unlawful or

61 Ruchi Majoo vs Sanjeev Majoo AIR 2011 SC 1952. 62 (2001) 5 SCC 247.

63

illegal and whether the welfare of the children requires that present custody

should be changed and the children should be left in care and custody of

somebody else. The principle is well settled that in a matter of custody of a

child the welfare of the child is of paramount consideration of the Court."

This was followed by the case of Paul Mohinder Gahun v. State of NCT of Delhi63

[], where the High Court of Delhi held that it was no longer contested that a writ of

habeas corpus may be maintained when parents are fighting over the custody of

their children. Here, too, the crucial consideration is whether the best interests of

the child will be served by the abducting parent, or the one who has filed the

petition for the writ.

In Gaurav Nagpal v. Sumedha Nagpal,64 the Supreme Court analysed the writ of

habeas corpus in relation to child custody matters. It distinguished the purpose of

the writ for minor children from that for majors. This is because for minor

children, the writ does not involve a question of personal liberty, since children are

supposed to be in the custody of a major. Instead, the purpose is to determine the

question of lawful custody itself. The Court held that this remedy, therefore, is of

an equitable nature, and is not driven by the rights of either parent, but by the best

interests and welfare of the child.

“In short, the child's welfare is the supreme consideration, irrespective of the

rights and wrongs of its contending parents, although the natural rights of the

parents are entitled to consideration.”

Even though these cases arise under a petition for the writ of habeas corpus, the

resolution of the question of lawful custody relies on the same principles that are

63 113 (2004) DLT 823. 64 (2009) 1 SCC 42.

64

involved in a suit for custody simpliciter. The principle of best interests and

welfare of the child had been previously approved by the Supreme Court in the

case of Dhanwanti Joshi v. Madhav Unde.

Dhanwanti Joshi v. Madhav Unde involved a series of litigation not only on the

divorce between the parties, but also the custody and guardianship of the minor

son, in India and USA.65 Initially, the US court had granted custody of the child to

the appellant immediately after his birth. On this basis, she brought the son to India

almost a year later. However, the respondent obtained an ex-parte order in USA

providing visitation rights to him, which was modified in a few weeks to grant him

temporary custody. 2 years later, the Bombay High Court granted full custody to

the appellant with visitation rights to the respondent. A few weeks thereafter, the

respondent also obtained an ex parte order from a US court granting him full

custody, despite the order from the Bombay High Court.

The appellant then filed for guardianship under the Guardians and Wards Act and

under Section 13 of the Hindu Minority and Guardianship Act, which she obtained

in her favour through ex-parte proceedings. Respondent applied to have the order

set aside at the trial court, which was dismissed. He preferred appeals against the

dismissal at the High Court and the Supreme Court, which were also dismissed.

The Supreme Court however granted leave to pursue other remedies, on the basis

of which the respondent filed for custody afresh before the Family Court.

It was at this stage that he obtained a favourable order, against which the appellant

appealed to the High Court. This was dismissed for default, against which the

appeal was heard by the Supreme Court.

65 (1998) 1 SCC 112.

65

The Supreme Court considered various important questions in this appeal relating

to the phenomenon of international parental child abduction. These include:

whether the court of the destination country should hold summary proceedings and

repatriate the child on the sole basis of the foreign custody order (with limited

exception), or whether the court should consider the merits of the question of

custody afresh; what are the principles that govern the question of custody; what is

the value of the foreign custody order in the determination of the question; can the

abducting parent be considered to take advantage of its own wrong, etc.

The Supreme Court, while reversing the judgment of the High Court, held that the

paramount principle in such cases is the best interests and the welfare of the child.

It is this principle which decides whether the court must undertake summary

proceedings for repatriation, or a full trial to determine the question of custody

afresh.

“The summary jurisdiction is exercised only if the court to which the child

has been removed is moved promptly and quickly, for in that event, the

Judge may well be persuaded that it would be better for the child that those

merits should be investigated in a court in his native country on the

expectation that an early decision in the native country could be in the

interests of the child before the child could develop roots in the country to

which he had been removed. Alternatively, the said court might think of

conducting an elaborate inquiry on merits and have regard to the other facts

of the case and the time that has lapsed after the removal of the child and

consider if it would be in the interests of the child not to have it returned to

the country from which it had been removed. In that event, the unauthorised

removal of the child from the native country would not come in the way of

the court in the country to which the child has been removed, to ignore the

66

removal and independently consider whether the sending back of the child to

its native country would be in the paramount interests of the child.”

It is also the best interests of the child principle which governs the issue of custody

on merits, regardless of the rights or the wrongs of the parents. In this matrix,

comity of courts requires only a consideration of the foreign order, and not its

enforcement. The most compelling fact for the Court was that the child has been

living in India for the past 12 years, and sending him to his father in the USA

required uprooting him from his environment in a place where he was quite well-

settled.

The Court also analysed the principles of the Hague Convention on the Civil

Aspects of International Child Abduction, both, for Non-Convention and

Convention countries, and closely followed them in rendering this judgment.

This case was followed in Sarita Sharma vs. Sushil Sharma,66 in which the parties

were originally residing in USA along with their two minor children. The US

Court granted custody to the respondent, with visitation rights to the appellant, in

violation of which, the appellant brought the children to India. Thereafter, the US

court granted full custody to the respondent, and no visitation rights to the

appellant.

The respondent then filed a writ petition in the Delhi High Court, aggrieved by the

order of which, the appellant approached the Supreme Court. She contended that

when she came to India with the children, she was their natural guardian. The

Court held that

“… it will not be proper to be guided entirely by the fact that the appellant

Sarita had removed the children from U.S.A. despite the order of the Court of that 66 (2000) 3 SCC 14.

67

country. So also, in view of the facts and circumstances of the case, the decree

passed by the American Court though a relevant factor, cannot override the

consideration of welfare of the minor children.

…Ordinarily, a female child should be allowed to remain with the mother so

that she can be properly looked after. It is also not desirable that two children are

separated from each other. If a female child has to stay with the mother, it will be

in the interest of both the children that they both stay with the mother. Here in

India also proper care of the children is taken and they are at present studying in

good schools. We have not found the appellant wanting in taking proper care of

the children. Both the children have a desire to stay with the mother. At the same

time it must be said that the son, who is elder than daughter, has good feelings for

his father also…What would be in the interest of the children requires a full and

thorough inquiry and, therefore, the High Court should have directed the

respondent to initiate appropriate proceedings in which such an inquiry can be

held..."

The best interests of the child principle has been upheld even in 2011 by the

Supreme Court in the case of Ruchi Majoo v. Sanjeev Majoo, which extensively

considered the question of comity of courts.67 This analyses the question of

whether Indian courts must directly apply the foreign custody orders or instead

consider the question afresh in cases when spouses in NRI marriages bring the

children back to India in violation of custody orders.

The Supreme Court upheld the best interests of the child principle, and held that

comity of courts was a subservient consideration. Even in habeas corpus petitions,

which warrant summary proceedings, courts are duty bound to exercise their

67 Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

68

extraordinary jurisdiction to consider the matter on merits, the foreign order being

one of the factors that is considered.

Other cases following this line of reasoning include the 2004 Supreme Court case

of Saihba Ali v. State of Maharashtra,68 where the Court declined to grant the

custody of her children to the mother but at the same time issued directions for

visitation rights in the interest and welfare of the minor children; in Kumar V.

Jahgirdar v. Chethana Ramatheertha69, the Supreme Court came to the conclusion

that a female child of growing age needs her mother more than the father, and the

remarriage of the mother is not a disqualification in safeguarding interest of the

child; in Mandy Jane Collins v. James Michael Collins,70 the High Court of

Bombay at Goa declined to issue a writ of habeas corpus, thereby refusing the

custody of the girl child to the mother, while sending the parties to normal civil

proceedings for custody in Goa. The High Court clearly declined the return of the

child to Ireland in exercise of its writ jurisdiction and held that this question

requires analysis of disputed question of facts.

However, the best interests of the child principle in parental child abduction cases

remains controversial, because the Supreme Court and High Courts have given

conflicting judgments internally by also holding comity of courts to be the

governing consideration. One of these Supreme Court decisions was considered in

the case of Ruchi Majoo itself, which was V. Ravi Chandran v. Union of India and

Ors.71 Even before this, the Supreme Court had also given primacy to comity of

courts in the case of Shilpa Aggarwal v. Aviral Mittal.72 In both these cases after

68 (2003) 7 SCC 250. 69 (2004) 2 SCC 688. 70 Mandy Jane Collins v. James Michael Collins, (2006) 2 HLR 446 71 (2010) 1 SCC 174. 72 MANU/SC/1887/2009 : (2010) 1 SCC 591.

69

appreciating the facts of the case the Supreme Court deemed it fit to send the child

back to the foreign country.

The case of Shilpa Aggarwal can easily be reconciled by the dicta Dhanwanti Joshi

v. Madhav Unde. This is because the court in the receiving country was moved

within one year of the abduction having taken place. This meant that the child had

not yet developed roots in the new country, which is why the court held that her

best interests need to be determined in her country of residence, and not in India.

Even V. Ravichandran discusses the best interests of the child in light of the

foreign consent order. Here, the Supreme Court was dealing with a Habeas Corpus

petition filed directly before it under Article 32 of the Constitution. Previously, the

New York State Supreme Court had passed a consent order granting joint custody

of their son, confirmed two years later before the family court of the State of New

York. The mother then brought the son to India, informing the petitioner that she

will be residing with her parents in Chennai. The petitioner then approached the

family court of the State of New York alleging violation of the custody order,

which was modified to now grant the petitioner temporary sole custody. It also

issued Child abuse Non-bailable warrant against her. It was in this backdrop that

the Supreme Court directed the mother to take the child to United States of

America as per the consent order.

The Court limited itself to the preliminary question of whether it should undertake

summary proceedings and repatriate the child, or whether it should undertake a full

inquiry to determine the best interests of the child. It found that it would serve the

interests of the child best if the court of its original residence undertakes a detailed

consideration of the matter, especially since in this case, the child had not

developed its roots in India yet despite the long period of two years of his

70

residence here. The Court also took note of the fact that it was in pursuance of the

best interests of the child that the parties had consensually agreed on a settlement

before the foreign courts.

The Court further held that it is equally possible that the courts in the country

where the child has been removed may need to undertake a detailed consideration

of the custody question themselves. In that case, the best interests of the child shall

be paramount, and the order of the foreign court given due consideration. Whether

the courts undertake summary proceedings or detailed consideration depends

entirely on the facts and circumstances of the case.

In this manner, the Supreme Court in Ravichandran closely followed its earlier

judgment in the case of Elizabeth Dinshaw v. Arvand M. Dinshaw.73 The limited

question before the Court in that case, too, was whether international parental child

abduction requires the courts to undertake summary proceedings or a detailed

consideration of the best interests of the child. There, the Supreme Court stressed

extensively that the best interests of the child principle is paramount, and the legal

rights of the parents need not be considered. Specifically, the Court found that the

child had not developed his roots in India, and therefore his interests would not be

harmed by repatriation to his home country. In the same breath, the Court also

noted that the abducting parent cannot be allowed to take advantage of his own

wrong- a proposition that has been dismissed by the courts in subsequent cases.

In an earlier Supreme Court judgment, in Surinder Kaur Sandhu v. Harbax Singh

Sandhu as well, the Court had found itself lacking in jurisdiction to decide the

question of the custody of the child, holding that the country from which the child

had been abducted had the closest and most intimate connection with his welfare.74

73 (1987) 1 SCC 42. 74 1984 SCR (3) 422.

71

Therefore, even while absolving itself of the jurisdiction on the matter, the Court

nevertheless did so on the basis of the best interests of the child principle.

However, recent cases demonstrate a disturbing reversal in the trend of

international custody disputes. Courts have begun to prioritize the principle of

comity of courts over the welfare of the child. Judgments after Ravichandran have

read it in a manner that lends this interpretation. For instance, the recent case of

Arathi Bandi v. Bandi Jagadrakshaka Rao,75 decided by the Supreme Court relied

entirely on Ravichandran to hold that the child must be repatriated to the custody

of his father in sole recognition of the principle of comity of courts.

Arathi Bandi was decided even after Ruchi Majoo, which was a judgment that

compared the supposed Ravichandran approach with the Dhanwanti Joshi

approach, and preferred the latter. In any case, it is possible to limit Ravichandran

and Arathi Bandi both to their own facts to hold them in line with Dhanwanti

Joshi, that if the matter is brought before the Indian courts at such an early stage

that the child has been unable to develop roots in India, then his/her best interests

may be well served even through repatriation. In this matrix, it is submitted, the

orders on custody passed by foreign courts must be considered only one of the

factors, and not the most compelling factor in the determination, as held in Ruchi

Majoo.

In fact, the Delhi High Court in the case of Surjeet Singh v. State76 did extensively

discuss Ruchi Majoo. This was an interesting case, with very novel facts. This was

an international custody battle without abduction. Here, the parties brought the

children to India together, and not behind the back of the other or without the

other’s consent. The husband left for New Zealand leaving the wife and children

75 CRIMINAL APPEAL NO.934-936 OF 2013. 76 II(2012)DMC326.

72

behind, as they were expected to join him there in some time. There was no

custody order by any court. The wife and children did not go to New Zealand,

pursuant to which the husband filed a habeas corpus petition. Finding the conduct

of the father highly abusive, the Court found that it was not in the best interests of

the children to send them back to New Zealand, “even in a case involving principle

of comity of courts.” The Court analysed both, Ruchi Majoo and V. Ravichandran,

and affirmed that the best interests of the child triumph over even the principle of

comity of courts. It distinguished Ravichandran on the basis that the children there

were found fit to be repatriated because there was no indication of any harm to

their interests, whereas here, the abusive conduct of the father went against their

welfare. The Court also found it most significant that while the parties in

Ravichandran had obtained consent-based custody orders to preserve the welfare

of the children, no such orders existed in this case. Accordingly, the Court rejected

comity of courts outrightly in favour of the welfare of the children.

However, the recent case of Pooja Malhotra v. Pankaj Malhotra77 decided by the

Allahabad High Court documents the difficulties faced in having a case of this kind

adjudicated by the Indian Courts. The parents of the children divorced in New

Zealand and entered a consent-based custody arrangement, whereby the children

would be in the custody of the mother, while the father had extensive visitation

rights. In the exercise of these rights, the father legitimately brought them to India,

but refused to send them back on the due date. He, instead, initiated guardianship

proceedings here. The Court refused to entertain the petition on the basis that the

children were not ordinarily resident in the jurisdiction of the Indian courts. They

further noted the conduct of the father- in participating in the custody proceedings

voluntarily in New Zealand, and then violating the custody orders passed through

77 2012 (7) ADJ 582.

73

those proceedings through abducting the children and initiating separate

guardianship proceedings here. In several respects, therefore, the Court found these

facts similar to Ravichandran, on the basis of which ordered for the children to be

repatriated to New Zealand.

The requirement of “ordinarily resident”, as exemplified above, presents another

complication in NRI custody disputes. Only those courts where the child is

ordinarily resident possess jurisdiction to hear the matter relating to their custody.

As observed in Elizabeth Dinshaw, courts where the child is ordinarily resident (or

habitually resident under the Hague Convention on the Civil Aspects of

International Child Abduction) should be entrusted with the task of deciding on the

best interests of the child, unless, ironically, the best interests of the child

themselves require the courts of the destination country to decide on the question.

Mst. Jagir Kaur and Anr. v. Jaswant Singh expounded at length on the meaning of

“ordinarily resident” under Section 9 of the Guardians and Wards Act as follows:78

“Having regard to the object sought to be achieved, the meaning implicit in the

words used, and the construction placed by decided cases thereon, we would

define the word "resides" thus : a person resides in a place if he through choice

makes it his abode permanently or even temporarily; whether a person has chosen

to make a particular place his abode depends upon the facts of each case.”

In Kuldip Nayar and Ors. v. Union of India and Ors.,79 the Supreme Court stated:

“… residence is a concept that may also be transitory. Even when qualified by the

word "ordinarily" the word "resident" would not result in a construction having

78 MANU/SC/0242/1963 : AIR 1963 SC 1521 79 MANU/SC/3865/2006 : 2006 (7) SCC 1

74

the effect of a requirement of the person using a particular place for dwelling

always or on permanent uninterrupted basis.”

Despite these precedents the Courts repeatedly refuse to entertain guardianship

petitions, forcing parents removing children to India to evade adjudication of the

disputes by Court.

Evidently, there is no homogeneity in the decisions of Indian Courts relating to

NRI child custody and guardianship matters. While precedents since the 1980s had

prioritized best interests of the child, even to decide the weight to be granted to the

principle of comity of courts, recent judgments demonstrate a more patriarchal

vein. Here, comity of courts is given greater deference than the welfare of the

child.

The uncertainty and unpredictability in Court orders discourages parents from

having the dispute adjudicated. Often, the mother violates existing custody orders,

whether consent-based or not, due to a change in circumstances and a disability to

contest proceedings in the foreign courts. In such cases, counselors and other

alternative dispute resolution mechanisms may allow new consent custody

arrangements to be put in place. The Family Courts in India were set up with a

specific motive of resolving family disputes with the help of specialized staff, such

as counsellors. However, summary dismissal of these disputes for lack of

jurisdiction comes in the way of the efficient functioning of this new set up. It is

clear that some steps are necessary to allow civil adjudication of custody disputes,

for which legislative intervention has become necessary.

In any case, these decisions nevertheless shed light on the factors that are relevant

to decisions on NRI child custody. These are: the ordinary residence of the child,

75

for how long the child has been living outside the country of ordinary residence,

whether the child has developed roots in the second country, whether there are pre-

existing custody orders in the country of ordinary residence, whether the parent has

violated those custody orders, whether the parent could participate in the foreign

custody proceedings at all, etc.

It is these same principles that are discussed in the Hague Convention on the Civil

Aspects of International Child Abduction. For the Convention to be applicable,

however, there needs to be a pre-existing custody order in favour of some one

(parent or otherwise), which is violated. Accordingly, the Convention would be

unhelpful in cases such as Surjeet Singh. It becomes applicable on the fulfilment of

two conditions: one, the child is under 16 years of age, and two, that the child was

habitually resident in a Convention state before the custody order was breached.

The Convention provides that the Courts to which the child has been removed must

exercise summary jurisdiction to repatriate the child to the person who has lawful

custody. While the Convention aims to promote and protect the best interests of the

child, it nevertheless primarily advocates the principle of comity of courts.

There are a few situations, however, in which the Court is not obligated to conduct

summary proceedings. This is when more than a year has elapsed since the child

was brought to the new country, and it is likely that he/she has developed roots

there. Furthermore, if on an appraisal of other facts, the court finds that there is a

grave risk of harm to the child physically or psychologically.

India is not a signatory to the Convention, even though the Supreme Court in the

Dhanwanti Joshi case discussed the same extensively, and the 218th Law

Commission Report80 recommended acceding to the Convention. This is because

80 Law Commission of India, Two Hundred and Eighteenth Report on the Need to Accede to the Hague Convention on the Civil Aspects of International Child Abduction, 1980, (March 2009).

76

the Convention grants only secondary consideration to the welfare of the child,

requiring deference to foreign custody orders first. The Courts have rightly

distinguished custody battles between parents from other disputes over movable

property. The Courts have stated that in ordinary disputes for movable property,

where one party has deprived the other of possession and enjoyment of a movable

property, the Court can order swift return of the property. However, in a dispute

about custody of a child he or she cannot be treated at par with chattel.

Acceding to the Convention will inevitably operate against the interests of most

women, since they are incapacitated financially or through other circumstances to

participate in foreign custody proceedings. Acceding to the Convention implies

that they should either give up on the custody of their children altogether, or

further put up with abuse and violence in the foreign country.

Other countries that have signed it include Australia, Canada, the United States of

America and the United Kingdom. These are countries where a large Indian

diaspora is already present.

77

CONCLUSIONCONCLUSIONCONCLUSIONCONCLUSION

Marriages in India have a close relationship with social status. It is for this reason

that the marriage of a woman with a man residing outside India has significant

allure for Indian families. This, added to the difficulty in ascertaining the

antecedents of the man and his family due to their location abroad, often means

that the woman is susceptible to significant illtreatment and hardship at the hands

of the NRI husband and his family. Living in strange surroundings, away from

home, the woman is entirely dependent on the man for her sustenance and well-

being. Thus, when the marriage turns abusive or problematic, women are left with

scant or no legal recourse.

It is this helplessness that the law should aim to overcome by empowering the

woman. However, the current legal framework compels her to be either rendered

remediless or endure the abuse. To the courts empowered to grant her remedy, she

lacks access, and the courts that she has access to lack the remedies. The conflict of

laws raises a massive problem of jurisdiction of courts, for only those courts

possess jurisdiction where the couple or the respondent (often, the husband) is

habitually resident- which is the foreign country. The second condition may be the

domicile of the parties, which also leads back to foreign courts. The domicile of

the husband in the foreign land is easily established due to his status as a resident

there, and S.15 of the Indian Succession Act, as also the common law, provide that

the wife has no independent domicile, and follows that of the husband. Thus, when

women return to India, to their family and familiar surroundings, they do leave

marital abuse behind, but they also leave behind their legal rights and entitlements.

To overcome this situation of remedilessness, we propose a overhaul of the legal

structure governing NRI marriages. This requires a reworking of the Foreign

78

Marriages Act, the Guardians and Wards Act, the Code of Civil Procedure and the

Code of Criminal Procedure, among others.

Amendments to the Foreign Marriage Act:

The Foreign Marriage Act currently governs a very narrow range of marriages-

those in which a couple, at least one of whom is an Indian citizen, marry abroad..

The Act is procedural in nature, stipulating only the manner in which the marriage

needs to be undertaken. For remedies, it refers to the Special Marriage Act, which

too is subservient to any remedies that the law of the foreign jurisdiction provides.

Even these remedies are contingent on the requirements of residence and domicile-

which are deeply problematic for the woman, as we have mentioned earlier.

We propose that the Foreign Marriage Act should encompass a wider range of

marriages within its fold, and also provide for greater access to marital and familial

remedies. Other Acts governing marriages are constrained by their operation to

largely local marriages, where there are no provisions regarding jurisdiction and

processes over persons located abroad. Neither these laws, nor the Foreign

Marriages Act provide any safeguards for women in marriages solemnised in

India, where the couple intends to reside abroad.

Accordingly, we submit that the Foreign Marriages Act should govern marriages

of the following kind:

a) Marriage between two persons where one spouse is a citizen or a resident of

a country abroad;

b) Marriage between two NRIs;

c) Marriage between two persons, both of whom are not citizens of India, but

one or both of whom are currently residing in India though married abroad

79

Further, the Act should provide for a wide gamut of remedies, not limited to

divorce, judicial separation, maintenance, alimony and custody. It must also entitle

the wife to a half share in the husband’s share of the immovable property acquired

during the period of marriage, and also a half share in the movable properties and

damages and compensation for harassment, abuse and abandonment. Access to

these reliefs by the wife should not be contingent on her permanent or habitual

residence or domicile. Currently, women may avail of remedies under the Act only

if they have resided in India for three years preceding the petition for relief. We

submit that this must be amended in line with the other laws for the benefit of

women, such as S.125, CrPC, Protection of Women from Domestic Violence

Act etc., where jurisdiction vests in a Court on the basis of the present

residence of the woman.

In addition to this, the procedure during registration and petitions for relief must

also include safeguards to the interests of women and children moving abroad, to

ease access to courts and marital remedies. For instance, NRI marriages in India in

which the husband is a foreigner/ person resident abroad should be registered

under the Foreign Marriage Act along with a declaration/Affidavit giving his full

particulars, including:

� His citizenship or permanent residency number

� His place and nature of employment and the details of his earnings

� The listing of his properties in India and abroad

The Act should also provide for attachment of property before judgment and other

safeguards to protect the rights of women and children to financial support.

80

Amendments to the Guardians and Wards Act

Women in NRI marriages are often denied custody of their children, since their

departure from the foreign country incapacitate them from participating in the

costly custody proceedings abroad. If a woman assumes custody of the children by

bringing them to India, she is construed as a ‘wrong-doer’ and a kidnapper. For

this reason, we submit that the Guardians and Wards Act should be amended to

make the father and the mother of the child both the natural guardians. To ensure

access to remedies and legal proceedings, Section 9 should be amended to confer

jurisdiction upon courts where the minor is ‘presently residing’. In proceedings for

custody, a father who has wilfully refused to pay maintenance and Child Support

should be refused visitation rights/custody.

Lastly, India should maintain status quo with respect to the Hague Convention on

the Civil Aspects of International Child Abduction, and not sign it. Being a gender-

neutral Convention, it does not account for the specific experiences of women, and

this often acts against them as related in the chapter on Custody.

Amendments to the Procedural Laws and other marriage laws:

Section 13 of the Code of Civil Procedure should either read the exception of

violation of principles of natural justice widely, or contain an additional exception

where the woman is unable to contest litigation abroad. This would exempt them

from the hardship of unjustly passed divorce decrees or custody or other orders.

These decrees, without enough opportunity for the woman to represent her case,

pass unfavourable orders, and also later prevent her from exercising remedies in

India. Moreover, akin to Section 126 of the Code of Criminal Procedure,

jurisdiction for matrimonial reliefs and marriage related offences should be

conferred on Courts in a place where the woman is presently residing.

81

Secondly, bail conditions for an NRI should provide that he deposit his passport in

Court.Also, the provisions of S.10(3)(e) of the Passport Act should be actively

enforced. This provides that:

(3) The passport authority may impound or cause to be impounded or revoke

a passport or travel document,-

… (e) if proceedings in respect of an offence alleged to have been committed

by the holder of the passport or travel document are pending before a

criminal court in India;

The law should also state that the NRI provide security in Court for the amount

equivalent to the amount of dowry/stridhan claimed. All marriage laws should also

be amended to specifically provide for injunctions preventing a husband from

selling or alienating property during the pendency of proceedings in a case for

maintenance, alimony or property.

Since a major hurdle in claiming matrimonial relief is the difficulty in serving

processes on NRI husband and in-laws located abroad, we submit that Lookout

Notices should be issued for husbands against whom offences have been

registered. In this direction, we further propose that India should sign reciprocal

treaties for the service of summons, enforcement of maintenance orders and

extradition with all countries with a sizeable population of people of Indian Origin.

These measures will go a long way in securing reliefs to aggrieved women and

make their rights and justice more accessible.